
    Jackson Lumber Co. v. Cunningham, Administratrix.
    
      Action l)y Administratrix to recover Damages for Death of Intestate.
    
    1. Employer's Liability Act; action for negligence; sufficiency of complaint. — In an action brought by an administratrix of the estate of a deceased employee against his employer to recover damages for the injuries resulting in the death of plaintiff's intestate, a count of the complaint states a cause of action, and is not subject to demurrer which in its averments attributes the plaintiff’s intestate’s death to “a defect in the condition of the ways, works, machinery or plant used in or connected with the said business of defendant, which said defect arose from or had not been discovered or remedied, owing to the negligence of defendant or of some person in the service or employment of defendant, and intrusted by it with the duty of seeing that the said ways, works, machinery or plant were in proper condition, viz: the said railway from which the said engine was derailed as aforesaid at or near the point of derailment was defective.”
    2. Action for injuries resulting from derailment of railroad engine; admissibility of evidence. — In an action by an administratrix of deceased employee against the lattér’s employer to recover damages for injuries resulting in the death of plaintiff’s intestate, where the injuries were caused by a railroad locomotive upon which the intestate was engineer, becoming de- - railed, and turning over upon him, and in the complaint the negligence complained of was the defective condition of the railroad track, it is permissible for the plaintiff to introduce testimony tending to show the condition of the rails and timbers of the railroad track at the place of the derailment as they appeared shortly after the accident.
    3. Same; same. — In such a case, for the purpose of identifying the timbers found near the track and described by certain witnesses as having been partly decayed, with the timbers that had been removed from the track after the accident, it is permissible for the plaintiff to introduce testimony to show that between the time of the accident and the time referred to by the witnesses who had examined the track, said track had keen repaired and the timbers referred to had been removed therefrom.
    4. Same; same. — In such an action, where there is some question as to whether the rails used on the railroad track were of the proper weight, it is competent to ask a witness who was shown to have been an engineer for a number of years, and to have had experience in railroading, what in his judgment, was the weight of the engine which was derailed, and which caused the injury to the plaintiff’s intestate.
    5. Action for personal injuries occasioned by derailment of railroad locomotive; charge in reference to inspection of track. — In an action to recover damages for personal injuries resulting in the death of an employee who was, at thé time of the injury, an engineer upon one of the defendant’s engines, and it is averred that the injuries were sustained by reason of defects in the condition of defendant’s railroad track, the fact that two days before the accident, the railroad track was inspected and no defect was discovered, does not, as a matter of law, show that there was no defect in the railroad track.
    6. Duty of owner of railroad to employee. — It is the duty of a railroad company to keep its ways, works, machinery or plant in safe and good condition, and, in the absence of knowledge to the contrary, an employee is entitled to assume that this duty has been performed.
    7. Same; same. — In an action against a company owning a railroad to recover damages for injuries caused by the alleged defects in the railroad track, the burden is upon the defendant to prove that the plaintiff’s intestate knew of the defect causing the accident; and the fact that he had such knowledge is not reasonably inferable from the mere fact that he had been accustomed to run trains over such road.
    Appeal from the Circuit Court of Chilton.
    Tried before the lion. N. I). Denson.
    This action was brought by the appellee, Lola Cunningham, as administratrix of the estate of Norman Cunningham, deceased, against the appellant, the E. E. Jackson Lumber Company, to recover damages for the alleged negligent killing of the plaintiff’s intestate.
    The complaint as originally filed, contained ' four counts. During the trial of the case and after the introduction of all the evidence, the plaintiff amended her complaint by striking out the 1st, 3rd and 4th counts of the complaint. The substance of the 2nd count of the complaint, as amended, on which the trial was had, is sufficiently stated in the opinion.
    To this second count as amended, the defendant demurred, assigning various grounds, which may be summarized as follows: 1. Said count does not show any negligence on the part of the defendant, its agent, servant or employee. 2. Said count does not show what constituted the defect in the ways, works, machinery or plant used in or connected with the business of defendant. 3. Said count does not point out the defect in said rail-wa3r at or near the point of said derailment. 4. Said count does not show that the defect complained of was the proximate cause of the death of plaintiff’s intestate. This demurrer was overruled.
    The defendant pleaded the general issue and several special pleas, in which was set up contributory negligence on the part of plaintiff’s intestate, and also that the plaintiff’s intestate assumed the risk incident to his running the engine over the track of the railroad company at the point where the derailment of the engine occurred. Issue was joined upon these pleas.
    On the trial of the case, it was shown that the defendant was engaged in the lumber business and was operating a saw-mill; that in connection with such lumber and saw-mill business, the defendant owned and operated a railroad, upon which 'was run locomotives and cars; that at the time of the accident which resulted in the death of plaintiff’s intestate, plaintiff’s: intestate was in the employment of the defendant as an engineer, upon one of its locomotives, which was being run upon the track of defendant’s railway; that the said intestate had been so employed for a number of months, and had been running as engineer upon the particular engine for several months; that on the day of the accident, the plaintiff was running said engine along the railroad track owned by the defendant, and there was attached to said engine a. number of cars; that as said engine was moving along said track, and as it came to a certain designated stock gap along said railroad track, s;aid engine became derailed and turned over upon the pl>ain: tiff’s intestate, and crushed him to death.
    The plaintiff’s testimony tended to show that at the stock gap where the derailment of the engine occurred, the’ track of the defendant Avas in a defective condition; that the rails Avere too light to sustain an engine of the' weight of the locomotive upon which the plaintiff’s intestate Avas riding; that some of the cross-ties at said place Avere rotten, and that thei derailment of the engine Avas caused by the lightness of the rails, and the rotten condition of the cross-ties at said place.
    - The evidence for the defendant tended to shoAv that the track of the defendant was in good condition and in good repair; that at the stock gap in question along that part of the said railroad track, the crossties were not rotten, but Avere in good condition, and that the road-bed Avas in good condition. The section foreman AAdio had superintendence and supervision over the part of the railroad track Avhere the accident occurred, tes: tiffed that he inspected said road-bed and track on Sat-' urday preceding said accident, AAdiich occurred on Monday, and that said road-bed Avas in good condition and said track in thorough repair.
    During the examination of some of the Avitnesses for the plaintiff and after they had testified to an examination of the track of the defendant’s railroad at the stock gap upon the day of the accident, the said witnesses Avere allowed, against the objection and exception of the defendant, to testify to the condition of the rails and timbers of the road-bed of said railroad at said stock gap and for a short distance on either side of said stock gap, as they appeared shortly after said accident, and also to said track having been repaired after said accident, and to have found partly decayed stringers and cross-ties at and near the place of derailment, which stringers and cross-ties appeared to have been taken from said stock gap and the railroad immediately adjacent thereto.
    During the examination of one Thomas Meroney, he testified that he Avas in the employ of the defendant as an engineer on the date that plaintiff’s intestate was injured; but was operating a different engine; that he had been an engineer for a number of years, and had had a great deal of experience during that time, not only in reference to' locomotive engines, but also- as to* the construe' tion of railroad tracks,' having been also' a section foreman for a short time. Thereupon the plaintiff asked said witness what, in his judgment, was the. weight of the engine upon which the plaintiff’s intestate was riding Avhen the accident occurred. The defendant objected to this question, upon the grounds that it called for irrelevant, illegal and immaterial evidence, and because the witness was not shown to be an expert as to such matters, and was not shown to have been sufficiently familiar with the weight of said engine to answer. The court overruled the objection and the defendant duly excepted. The witness answered that in his estimation the 'engine weighed' 45 tons.
    The court, at the request of the plaintiff, gave to the jury the following written charges: (1.) “The jury in weighing the evidence are not bound to count the number of Avdtnesses and decide the case for that side Avhich has the most witnesses.” (2.) “It is the duty ordinarily of a corporation employing a locomotive engineer to use due care to see that the railway over which he is required to run the engine is in a reasonably safe condition for the running of the engine, and the engineer may ordinarily act on the presumption that the eim ployer has attended to- this duty.” (3.) “There is no evidencia in this case that Norman Cunningham was guilty of any negligence AAdiich proximately contributed to his own death, and the jury cannot find a verdict for defendant on any of its pleas of contributory negligence.”
    The defendant separately excepted to the court’s giving each of said charges, and also' excepted to the court’s refusal to give each of the following written charges, requested by it: (2.) “I charge you, gentlemen of the jury, that if you find from the evidence that it ivas the duty of plaintiff’s intestate to keep in repair the railway and cattle guard, and if there Avas any defect therein it was his duty to remedy or cause to be remedied such' de-feet, and if he failed therein he cannot recover.” (3.) I charge yon, gentlemen, that defendant is not liable if Norman Cunningham knew of the defect in the railway, and failed in a reasonable! time to give information thereof to his employer, or to some person superior to himself in the service of the employer, unless he knew that the employer or such superior was already aware of the defect; nor is the employer, the E. E. Jackson Lumber Company, liable unless the defect arose from or had not been discovered or remedied owing to the negligence of the master or employer, or some person in his service instructed by him with the duty of seeing that the railway and cattle guard were in proper condition.” (4.) “I charge you, gentlemen of the jury, that if you find from the evidence that at the time plaintiff’s intestate ran such engine over such railway, he was an experienced engineer and familiar with railway tracks, and knew at the time the character and condition of said track, and knew the effect of running such engine of such character and condition on said railway, and the danger incident thereto, and knew the chances and danger of derailment of said engine, if run upon said track, then the plaintiff cannot recover in-this action.” (5.) “I charge you, gentlemen of the jury, that if you believe from the evidence that the railway had been carefully inspected on the Saturday before the accident by a competent road overseer, and no defect was discovered in such railway, and if you further find from the evidence that such defect was not known to the defendant, his servants or employees, then the plaintiff cannot recover.” (8.) “I charge you, gentlemen of the jury, that if you believe the evidence in this case, you must find for the defendant.”
    There -were verdict and judgment in favor of the plaintiff, assessing her damages at $5,000.00. Thereafter' the defendant made a motion for a new trial, assigning as grounds therefor the several rulings of the trial court, which were adverse to the defendant, and that the verdict of the jury was contrary to the law and the evidence. The court- overruled this motion, and the defendant duly excepted.
    
      The defendant appeals, ajad assigns as error the rulings of the court upon the pleading, and the other rulings of the trial court to> which exceptions were reserved.
    Petttjs, Jeffries & Partridge, and Wm. A. Collier for appellant.
    The court erred in overruling the demur" rers to the 2nd count as amended of plaintiff’s complaint. One of the grounds of demurrer was that the defect relied on was not pointed out by the count. The word used was “railway.” A word of broader meaning could hardly have been used; as the word “railway” includes everything, the whole property of the corporation, and its very individuality, within its definition. • It has one of the widest and most comprehensive uses of any word in technology. — 13 Ency. of PI. & Pr. 908; L. & N. By. Co. v. Jones, Aclmr. 130'Ala. 456; Binóle v. P. & B. B. Co. 58 Pa. St. • 249. The court erred in its rulings upon the evidence. — Atchison, T. S. F. B. Co. v. Parker, 5 C. C. A. 220; Sapper field v. Mam. St. &A.P. B. Co., 91 Cal. 48, 61; Nalley v . Hartford Carpet Co. 51 Conn. 524, 527; Shinners v. Proprietors, etc., 154 Mass'. 168; Terre Haute & I. B. Co. v. Clem., 123 Ind. 15; s. c. 7 L. R. A. 588.
    The charges requested by the defendant should have been given. — L. & N. B. Co. v. Markee, 103 Ala. 160, 169; M. '& O. B. Co. v. George, 94 Ala. 199, 220; L. & N. B. Co. v. Binirn, 98 Ala. 570, 576; L. & N. B, R. Co. v. Davis, 91 Ala. 487, 494; Tuck v. L. & N. R. R. Co., 98 Ala. 150, 153.
    Bowman, Harrsh & Beddow, contra.
    
    The following authorities are conclusive against appellant’s position: Mary Lee{ C:I. & B. B. Go. v. Chambliss, 97 Ala, 172; 4 Hd. Note A. C. S. B. K. v. Davis, 119 Ala. 573; L. & N. B. B. Go-, v. Mothershed, 12 Sou. Rep. 715; Armstrong Admr. v. Mont. St. R. R. 123 Ala. 244; Sou. By. Go. v. Guyton, 122 Ala. 231; D. <& N. B. R. Co. v. Marbtory Lumber Co., 125 Ala. 237; Laughran v. Brewer, 113 Ala. 515; L. cG N. B. R. Co-, v. Hawkins, 92 Ala. 241; L. & N. B. B. Go. v. Orr, 94 Ala. 602; G. P. Ry. Co.v. Dmis, 92 Ala, 307; M. & M. By. Co. v.- Crenshaw, 65 Ala. 567; Leach et 
      
      als v. Hash, 5T Ala. 145; Hall v. Posey, 79 Ala. 85; ilf. & O. R. R. Co. v. Thomas, 42 Ala. 672; L. é N. R. R. Co. v. Jones, 83 Ala. 376; R. cl D. R. R. Co. v. Vance, 93 Ala. 147.
   SHAIiPE, J.

Plaintiff’s intestate.was killed by the dei-ailment of a locomotive engine lie was running on a railway operated by the defendant while in defendant’s service as an engineer. The action is! under the employers’ liability statute (Cede, §§ 1749, 1751) and by the count constituting the amended complaint, the death is attributed to “a defect in the condition of the ways, works, machinery or plant used in or connected with the said business of defendant, which said defect arose from or had not been discovered or remedied, owing to the negligence of defendant or of some person in the service or employment of defendant and instructed by it with the duty of seeing that the said ways, works, machinery or plant Avere in proper condition, viz., the said railway from AAdiich the said engine Avas derailed as aforesaid at or near the point- of derailment was defective.” The count mentioned -Avas not subject to the objections taken by demurrer. The averment quoted was sufficient to give notice of the species of negligence relied on for recoArery and of the structure undertaken to be shoAvn defective. The term “railway” being used in the pleading merely to designate that from which the engine was derailed, must- in such use be construed as synonymous Avitli track, and this court has held in actions similar to this that a complaint alleging that the track of a railroad was defective is under our system of pleading sufficiently specific as to defects. — Ala. Gr. So. R. Co. v. Davis, 119 Ala. 573.

From the condition of the rails and timbers of the raihvay including the stock gap standing at the place of derailment as they appeared shortly after the accident, inferences might Avell have been drawn as to conditions existing at the túne of the accident. Plaintiff had, therefore, the right, to prove such subsequent condition, and for the purpose of identifying timbers found near the track and described by Avitnesses, as being partly decayed with timbers that bad in part composed tbe track at tbe place of derailment when tbe same occurred, it was proper to allow proof that between tbe time of occurrence and tbe time of tbe examination made by tbe witness, changes were made involving tbe removal of those timbers from tbe track, at and in immediate proxomity tol that place. — 20 Am. & Eng. Ency. Law 86.

Presumably the witness Meroney in tbe course: of bis experience as an engineer and section boss, bad acquired such knowledge of engines as together with bis personal observation of the engine derailed, qualified him to give, in testifying, bis estimate of tbe weight of that engine. “Tbe rule excluding opinions as evidence is not applied so strictly to questions of values and estimates as to many other subjects.” — Mobile etc. R. Co. v. Riley, 119 Ala. 260.

How frequently tbe road ought in the use of due care to have been inspected, was a question of fact dependent, it may be, on tbe character, of tbe material of which tbe road was composed and tbe use to which tbe same was subjected. Tbe court could not properly have charged as matter of law that defendant’s duty in that regard bad been discharged by an inspection bad on tbe Saturday next before the Monday of the accident as was assumed in refused charge 5 .

There was ím evidence to show such defect as may have existed, was open to ordinary observation or was brought to the intestate’s attention, nor wras there evidence that the intestate’s duties extended to track inspection. To him the defendant owed tbe duty of using due care to provide a track reasonably safe for thei running of trains and be, in tbe absence of knowledge to tbe contrary, was entitled to assume, and rely on tbe assumption, that this duty bad been performed. — Ga. Pac. R. Co. v. Davis, 92 Ala. 300; L. & N. R. R. Co. v. Baker, 106 Ala, 624; L. & N. R. R. Co. v. Hawkins, 92 Ala. 241. Tbe burden of proving tbe intestate knew of tbe defect causing the accident was on the defendant, and that be bad such knowledge wms not reasonably inferable from the mere fact that he bad been accustomed to run trains over the road. — Highland Ave. etc. R. Co. v. Miller, 120 Ala. 535. The court, therefore, was justified in giving charges upon the assumption that the intestate did not know of the alleged defective condition and was not guilty of contributory negligence, and in refusing charges framed upon the contrary assumption.

The question of defendant’s negligence belonged with the jury. There was evidence from which it might have been found that- by reason of unsoundness of its timbers and the lightness of its rails the track at and near the stock gap was not sufficiently stable to carry an engine so. heavy as the one in use and that the defect arose from or had not been discovered or remedied owing to negligence chargeable to the defendant. It does not appear that the court erred in overruling the motion for a new trial o.r in any matter insisted on in briefs. Assignments of error not so insisted on are not here noticed.

Judgment affirmed.  