As the substance of the special charge complained of in the first assignment of error is, we think, fully covered by the court's general charge in the ninth paragraph, the assignment, we conclude, should be overruled.
The special charge complained of in the second assignment of error is substantially embraced in the fourth paragraph of the court's charge, and the refusal to give this special charge is not, we think, error.
The third assignment of error charges that the verdict of the jury is excessive in amount. It is believed that the finding of the Jury should not be set aside in this respect, in view of the injury, since the assessment of the amount by the jury is supported by the evidence before them.
The fourth, fifth, and sixth assignments of error are based on the contentions that the evidence does not show any negligence on the part of the defendant, and that the plaintiff failed to make legal proof of the negligence alleged. While it appears from the evidence that the roadbed was constructed some five or six months before the track or rails were placed upon it, and that it was constructed of good, solid dirt, yet the reasonable safety of such roadbed so constructed is not conclusive as a matter of law. And it must be further considered as a circumstance in the case that there was a new dump or roadbed made the day the track or rails were laid, and the further fact must be considered that the evidence shows that the track or rails and ties were laid the day before the derailment occurred. This relaying of rails and ties required, it appears, some filling in of cinders and dirt under them, the raising of a part of the rails, the tamping of these cinders and dirt, and an alignment of the track. And it further appears as a circumstance that —
After the rails were placed on the roadbed, "after we throwed the embankment over, we threw it further to the outside of the curve The track came about to the edge of the new embankment; some places not to it. I do not remember how it was at the place of the wreck. We throwed the curve all the way from a foot to four feet; most of it was thrown four feet over; throwed a distance to make the curve perfect."
Whether or not the entire work of changing the track and aligning it made the track reasonably safe for use such as an ordinarily prudent person would make it, considering the use it was put to, was, we conclude, a matter of fact essentially for the jury to decide; and it is thought that the evidence is sufficient to support a finding of negligence by the jury. It is true that three or four trains passed safely over the track before the derailment, but that is only a circumstance for the jury to consider. The jury may have concluded, as in their province, that the passing of these trains with their weight on a newly laid track caused the track in its then condition and according to its construction to be materially weakened or in some weak condition for the passenger train to pass over it with reasonable safety. There is evidence that the appellee ran his train slowly over the track. The exact cause of the derailment does not positively appear; but the circumstances in evidence tend to support the finding of the jury, as involved in their verdict under the charge of the court, that the cause of the wreck was, as alleged, the insufficient bed and support under the rails, or that the ties did not have sufficient support between them. The case does not rest, we conclude, upon the doctrine of res ipsa loquitur, but there is proof of negligence by direct and circumstantial evidence.
*Page 534The judgment is affirmed.