§ 2814. Evidence in Case of Injuries from Derailments.-In actions for damages for injuries to passengers proceeding from this source, evidence of other defects in the railroad of the company in the vicinity of the accident, is admissible,-not for the purpose of proving a defect at the place of the accident, but for the purpose of proving that the company did not take due care of its road.379 Evidence of successive breakings of the rails at the same place is admissible, as tending to show the condition of the track at that point.380 Where there was testimony tending to show that the derailment of a coach, causing the death of a passenger, was due to the operation of the train with the coach, instead of the engine, in front, it was admissible to prove by witnesses familiar with the operation of trains that it was more hazardous to operate the train in that way than with the engine in front.31 A witness may tell what effect the passing of trains over a certain curve would have, when he had worked there and noticed it, though this was three years before the derailment of the passenger train causing plaintiff's injury; provided the evidence shows that the same conditions existed at both times.382 § 2815. Questions of Procedure and Evidence Connected with the Subject of this Article.-An error sometimes committed by practitioners is to allege negligence in the use of defective means of transportation, and then to attempt to recover by giving evidence of the negligence of the servants of the carrier in using those means of transportation,—in other words, to allege one kind of negligence and then to attempt to recover by proving another kind of negligence.383 The reason is that such a pleading does not convey to the defendant a fair notice of the ground on which the pleader intends to rely at the trial. He should allege all the grounds of negligence which he can prove. In tion on the part of those in charge of the train. This knowledge was a material ingredient in the alleged negligence, and, as such, should have been submitted to the jury: International &c. R. Co. v. Halloren, 53 Tex. 46. The court cited to this point Withers v. North Kent R. Co., 3 Hurl. & N. 969. Texas &c. R. Co. v. De Milley, 60 Tex. 194. Contrary to this, there is a short-sighted decision to the effect that the evidence must be confined to the condition of the roadbed in the immediate vicinity of the accident: Hipsley v. Kansas City &c. R. Co., 88 Mo. 348; s. c. 4 West. Rep. 45. 104 Ind. 264; s. c. 1 West. Rep. 890. 381 Louisville &c. R. Co. v. Scott, 22 Ky. L. Rep. 30; s. c. 56 S. W. Rep. 674. 382 Louisville &c. R. Co. v. Sandlin, 125 Ala. 585; s. c. 28 South. Rep. 40. 383 For example, where the complaint predicated a right to recover damages on the negligent management of its road by the defendant, evidence of the improper construction of the car from which lumber fell onto an adjoining track, causing injury to persons on a train passing on that track, was held inadmissible: New York &c. R. Co. v. Atlanta Ref. Co., 129 N. Y. 597; s. c. 42 N. Y. St. Rep. 346; 49 Am. & Eng. 350 Cleveland &c. R. Co. v. Newell, Rail. Cas. 131; 29 N. E. Rep. 829. particular jurisdictions the rules of pleading may be so nice as to compel him to allege them in different paragraphs or counts of his complaint. On principle, there is no propriety in this where negligence in different particulars leads to a single accident and a single injury. For instance, a railway company may be negligent in maintaining a weak and defective rail; through its servants it may be negligent in driving a train over it at an excessive rate of speed:-these two factors may produce a breaking of the rail and a derailment of the train and a consequent injury to a passenger. There is no propriety in splitting up into two counts these two kinds or sources of negligence, since they may depend upon each other and may merely form separate causes which, united, produced the catastrophe. If the rail had been strong enough, it probably would not have broken, although the speed of the train was excessive: if the speed of the train had been moderate, it probably would not have broken the rail, although the rail was defective and weak. Different counts are properly employed in pleading only where different causes of action are to be stated. If the facts stated in the different counts contradict each other, so that if one count is true the other can not be true, the plaintiff may be driven, at the commencement of the trial, to make his election as to the one on which he will proceed. There is no special hardship in this, since he ought to be prepared by that time to know which count he will be able to prove. Under a liberal system of procedure, however, he is often allowed to put in his evidence, adducing any competent evidence which tends to prove the allegations of either count, and, at the close of his case or at the close of the whole trial, to dismiss those counts which, in his judgment, he may not have succeeded in proving. In civil procedure and where the nomenclature of the common law is retained, this is called taking a non pros. Coming now to the points of evidence specially applicable to this article, we find that it has been held, under a complaint in an action by a passenger against a railway company, alleging negligence in the condition and management of its cars and in the unsafe condition of its roadbed, that evidence of the condition of its track and of the condition of the stove in one of its cars was admissible.384 Under counts in a common-law declaration in such an action, alleging negligence in the defendant in failing to have its roadbed in a proper condition at or near the place of the accident, which consisted in the derailment of a passenger car: that the track was so constructed that the rails spread when the train ran upon it,— it was held that evidence tending to show that, at the embankment 384 Dunn v. Burlington &c. R. Co., 35 Minn. 73. where the wreck occurred, water was allowed to stand in a ditch beside the road, and in pits from which earth for the embankment had been taken, was admissible, in connection with other evidence tending to show that the cross-ties on the embankment were decayed so that spikes holding down the rails would work out; that there was a curve at that point; that the embankment was of clay which seeped water; and that the ties would spring up and down, and that water would work out of the end of the ties.385 Where plaintiff alleged her injuries to be caused by the derailment of a train because of a defective switch, it was held that the specification in the complaint of the defects in the switch, alleged as negligence, did not relieve defendant from the necessity of showing that it was properly constructed in all respects.380 In an action to recover damages for injuries received by a passenger, caused by the derailment of the train, it is plainly competent to show everything relating to the construction of the track since it was built, that would tend to show its condition at the time and place of the wreck,―as, for example, that there were pine poles in the bridge where the accident occurred.387 Where the issue was whether the approach of an incoming train was hidden from the plaintiff by an outgoing train which was delivering passengers at the station near which the accident occurred,—it was held that a train report sheet kept in the train dispatcher's office at the terminus of the railroad showing the time of starting of trains from the terminus, was relevant evidence.388 385 Louisville &c. R. Co. v. Sandlin, 125 Ala. 585; s. c. 28 South. Rep. 40. 286 Terre Haute &c. R. Co. V. Sheeks, 155 Ind. 74; s. c. 56 N. E. Rep. 434. Fordyce v. Moore (Tex. Civ. App.), 22 S. W. Rep. 235 (no off. rep.). 388 Donovan v. Boston &c. R. Co., 158 Mass. 450; s. c. 33 N. E. Rep. 583; 47 Alb. L. J. 351 (injury to a traveller at a street crossing). In an action by a passenger for injuries received through a derailment of the car in which he was riding, caused by a broken rail, an instruction to the effect that there was no presumption that the rail was broken before the particular train reached it (another train having passed over it a short time before in safety), and that if the plaintiff claimed that it was broken, the burden of proof was on him to show that fact,-was held erroneous: Cleveland &c. R. Co. v. Newell, 75 Ind. 542. An allegation in a declaration that "the defendant did not use due and proper care or skill in and about the carrying. *** but so negligently and unskillfully conducted itself in that behalf, and in conducting, managing and directing the coach in which was such passenger *** and the engine whereby the said train was drawn upon and along the said railway, that the coach *** was thrown and cast with great violence from and off the rails of said railway,"-is sufficiently particular: Louisville &c. R. Co. v. Jones, 83 Ala. 376; s. c. 3 South. Rep. 902. In an action to recover for the death of one riding on a freight train, in violation of the company's rule forbidding carrying of passengers on its freight trains, where the right of recovery was predicated on the ground that the rule was habitually violated, and the § 2816. Other Applications of these Principles.-When a railroad was built on an embankment, and the company had taken no precautions by widening the ground of the road, or by erecting walls, to prevent trains which might run off the track from going over the embankment, and such an accident happened, whereby a traveller was injured, it was held a case for damages.389 So, if the gate or crossbar maintained at a railway crossing is so constructed that, in any event which may reasonably be expected to occur, it is dangerous to passengers, the railway company will be liable to a passenger for any injury sustained by reason thereof. Thus, it appeared that at the intersection of a railway track and the highway, the railway company had placed a gate consisting of a pole about thirty-five feet long, which, when trains were passing, was swung from one side of the highway to a post on the other, as a bar to travellers on the highway. On such an occasion, a heavy runaway team came along the highway, dashed against the pole while in such position, and broke or loosened it from its fastening. The pole swung obliquely across the railroad track, and the whole or a part of it was driven into a car of a passing train which had not slackened its speed. In an action by a passenger in this car for injuries received in this accident, evidence of the above facts was held sufficient to warrant a jury in finding that the accident was caused by the defendants' negligence.*** The fact that a similar accident had never been known, or heard of before, by persons engaged in the management of railroads, will not relieve a railroad company from liability for an injury to a passenger, which, by the exercise of the highest degree of care, could have been foreseen and guarded against.391 evidence showed that the rule was promulgated several years before plaintiff's husband was killed, evidence of persons having so ridden at times varying from six months to three years previous to the accident, was held admissible, on a principle hereafter explained: Post, § 3115; San Antonio &c. R. Co. v. Lynch (Tex. Civ. App.), 55 S. W. Rep. 517. But see ante, § 2666. 380 Hanley v. Harlem R. Co., Edm. Sel. Cas. (N. Y.) 359. 390 Tyrrell v. Eastern R. Co., 111 Mass. 546. 391 Illinois &c. R. Co. v. O'Connell, 160 Ill. 636; s. c. 43 N. E. Rep. 704; aff'g s. c. 59 Ill. App. 463 (woman's dress caught on a projecting coupling pin while alighting from a car). ARTICLE V. NEGLIGENCE OF RAILWAY CARRIERS IN OPERATING SECTION THEIR TRAINS. SUBDIVISION 1. In General. 2818. Degree of care required of railway carriers of passen gers. 2819. Expressions of this rule of diligence in railway cases. 2820. Other such expressions as to railway carriers. 2821. Must adopt rules and regulations to promote safety, and conform to them. 2822. Injuries from overloading passenger cars. 2823. Injuries in consequence of collisions between trains of the same company. 2824. Further of such collisions. 2825. Collisions with trains of other companies. 2826. Injuries in shunting cars against cars carrying pas sengers. 2827. Injuries in consequence of ex cessive speed. 2828. Effect of the acquiescence of the community in a particular rate of speed. 2829. Injuries to passengers from leaving ice on the platforms of cars. SECTION 2830. Injuries to passengers through sudden jerking, lurching, etc., of the car. 2831. Cutting off sleeping car and leaving passenger behind. 2832. Duty to stop and rescue passengers. 2833. Duty of railway companies to 2834. Duty to light their cars. 2836. Application of these principles 2837. Statutory safeguards. 2838. Derailments from other causes than defects in carrier's roadway, vehicle, etc. 2839. Instances where the railway carrier of passengers was held liable. 2840. Instances where the carrier was exonerated from the charge of negligence. 2841. Questions of fact for the jury. § 2818. Degree of Care Required of Railway Carriers of Passengers. In most of the foregoing cases the carriers whom it was attempted to charge with liability were railway companies. It will not be possible to suggest any distinct particulars in which their liability differs from that of other carriers, except that, as the means adopted by them are greatly more dangerous to the passenger, the care demanded of them must correspondingly increase.392 And this is equally true under the American rule, which exacts an extreme degree of care,3 393 and under the English rule, which measures their liability by the standard of ordinary or reasonable care;394 for or 392 Vol. I, § 25. 393 Ante, § 2722. 394 Ante, § 2744. |