The Montgomery advertiser., 1904-11-10
JACKSON LUMBER COMPANY " CUNNINGHAM, ADMINIsTRA-
 rDYv


 CUNNINGHAM, ADMINIsTRA- TRIx
 Action by Administratrtx to recover Damages for Death of Intestate. Appeal from the Circuit Court of Chiffon.
 l. Employers liability act; action
 for negligence; suficiency of com plaint-In an action brought by an
 administratrix of the estate of de-
 ceased employe against his employer
 to recover damages for the injuries re-
 sulting in the death of the plaintiffs intestate, count of the. complaint states a cause of action, and is not
 subject to demurrer which, In its aver ments attributes the plaintiffs intes-I
 tate's death to "a defect in the condi- ton 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 dis covered or remedfed, owing to the negligence of defendant or of some person in the services 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 rail- way 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 ac- | tion by an admintratrix of deceased | emplaye against the latter's employer to recover damages for injuries result | ing in the death of plaintiffs intes- tate, where the injuries were caused by q railroad locomotive upon which the intestate- was engineer, becoming
 derailed. and turning over upon him, and in the complaint the negligence
 complained of was the defective con-
 dition of the railroad track, it is per-
 missible for the plaintiff to introduce
 testimony tending to show the condi-
 tion of the rails and timpers of the
 railroad track at the place of the de-
 railment as they appeared shortly af-
 ter the accident.
 | 3. Same; same.-In such a case, for the purpose of identifying the timbers | f und near the track and described by
 certain witnesses as having been part
 ly decayed, with the timbers that had
 been removed from the track after the accident, 1t Is permissible for the
 plaintiff to introduce testimony to
 show that between the time of the
 accident and the time referred to by l the witnesses who had examined the ! track, said track had been repaired
 and timbers referred to had been re-
 moved 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, 1t
 Is competent to ask witness who
 was shown to have been an engineer for . 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 plain tiff's intestate.
 5. Action for personal injuries oc- l casioned by derailment of railroad To- | comotive; charge in reference to in- spection of track.-In an action to re- l cover damages for personal injuries | resulting in the death of an employe
 who was, at the time of the injury, an engineer upon one of the defendants engines, and 1t is averred that the in- juries were sustained by reason of dN- | fects in the condition of defendants
 railroad track. the Sact that two days
 before the accident, the railroad track was inspected and no defect was dis covered, does not, as a matter of law.
 show that there was no defect in the
 railroad track.
 6. Duty of owner of railroad to em- ploye.-It is the duty of railroad 1 company to keep its ways, works, ma chinery or plant in safe and good con dition, and. in the absence of knowl-
 edge to the contrary, an employe Is
 entitled to assume. that this duty has
 been performed.
 [. Same; same.-lne 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 defen- nlainttnS
 testate knew of the defect causing the accident: and the fact that he had
 such knowledge is not reasonably in ferrable from 70 mere fact that he
 had been accustomed to run trains over such road.
 Judgment affirmed.
 Opinion by Sharpe. J.