The Montgomery advertiser., 1905-02-09
HeAd-Nctes Of the Decisions Of Supreme Court Alabama
NORTHERN ALABAMA RAILWAY co

NORTHERN ALABAMA RAILWAY co.
 V. SHEA,
 Action to Recover Damages for Per
 sonal Injuries.--Appeal from the Circuit Court of Colbert. 1. Averrment of negligence: suffi- cfency thereof-A count that ayers that the train of cars upon which plaintiff was in discharge of his duties as brakeman was derailed, and plaintiff thereby injured, in consequence of its being run by the engineer at rate of speed which was dangerous and reck- less, contains sufficient averment of negligence.
 ?. Action for negligence; suficieney of complaint; averment of name of par ty to whose negligence injury is Im- puted-In an action against railroad corporation by an employe thereof to recover damages for personal injuries, where it Is alleged in the complaint that the Injury was caused by defects in the track of the defendant, which defect arose from or had not been dis covered or remedied owing to defend- ants negligence or the negligence of some person entrusted by defendant with duty of seeing that the track was in proper condition; 1t is not necessary l to aver the name of the person so en- trusted with such duty.
 .. 0dHAGs HaInGs HdIuSs pldlnt1h AGCu not aver that he had made dIligent ef- fort to ascertain negligent engineers full name.--A count alleging that plain tiffs injuries were caused by the neg ligence of ---~- Gould, whose given name is unknown to plaintiff and who was the engineer In charge of the loco- motive pulling the train, upon which plaintiff was employed as brakeman. and that said engineer so negligentiy and carelessly managed his engine as to throw some of the cars from the track. resulting in the Injury to plain tiff. sufficiently charges negligence; and 1t in effect ayers the surname of the engineer and that his Christian name is unknown to the plaintiff. It Is not necessary for plaintiff to aver that he had made diligent effort to as- certain the engineers full name, but had failed to ascertain 1t.
 4. Expert testimony; competency to testify as to condition of railroad track. "A witness who is shown to be skilled and experienced in respect of track conditions and track constructions, is competent to give opinions as to the defective and unsafe condition of a railroad track.
 B. Same; case at bar.--A witness who had had long experience as brake man, whose duties had to do with the regulation of the speed of the train un- der the varying circumstances incident to a railway, according to curve. grade, etc. is qualified to give his opinion on each of these matters, and to state that a train, at a particular time and place, was running at a dangerously high speed.
 6. Motion for a new trial on ground that verdict was contrary to evidence.-- Where each count of a complaint Is supported by tendencies of the evil dence, which make a case, under each, for the determination of the jury, mo- ton for a new trial on the ground that the verdict was contrary to or not sus- tained by the evidence. Is properly over ruled.
 I. Proof of averment in complaint; common knowledge of jury.-An aver ment in a complaint that the rails were insecurely fastened 10 the cross ties" is suflciently proved, if the evl- dence shows that ties were rotten, the purers' common knowledge being suf-' icient to afford them necessary assur- ance that rotten wood will not hold rail or spike.
 &. Defective track conditions: train men do not assume risks thereot.-t ls not the duty of trainmen, but or otheF emnIoyes to see that the track is sate and kept in proper condition anu therefore. trainmen do not assume the rick of defective track conditions
 opinion by Mcclellan, csJ.