As stated in the dissenting opinion of Mr. Justice Thomas, the testimony of plaintiff's witness Cunningham is to the effect that intestate, while walking on top of a box car, was thrown between two cars by the sudden jerking of the train, while it was backing slowly downgrade. There is no other evidence in the record which tends to show that the train gave a sudden jerk at the time of plaintiff's fall; and this witness testified on cross-examination that the train —
"was jerking as it was moving along, jerking like any other freight train jerks. * * * They all jerk as they move along, and that one was just rattling and jerking like any otherfreight train. When I got there it was doing that; I didn't see another sudden jerk; when I got to the window it was moving, and it gave this jerk."
The undisputed evidence shows that the intestate did not fall from the car as the result of any jerk or jar imparted to it by the starting of the train, for the only two eyewitnesses — who testified for plaintiff — stated that at the time of intestate's fall the train had already been put in motion and was moving slowly down the grade. We are therefore, not concerned with the means by which, or the manner in which, the engineer set his train in motion, though it may be observed that all the evidence affirmatively shows that it was done in a proper way, and with no unusual or unnecessary violence. The sole question presented is, whether the mere fact that the intestate fell, or was thrown, between the cars by reason of a sudden jerking of the train — the jerking not shown to be violent, but affirmatively shown to be the usual and ordinary jerking of a freight train while in motion — permits any reasonable inference that the train was negligently operated.
This court has frequently had occasion to declare its judicial knowledge of the fact that more or less violent jerks and jars are necessarily incident to the starting and stopping of trains operated by steam locomotives. St. L. S. F. R. Co. v. Dorman, 205 Ala. 609, 89 So. 70, and cases cited therein. And in those cases it is held that the employé does not assume the risk of sudden unnecessary *Page 699 movements, even though of no more than ordinary violence, which are caused by the negligence of the engineer in the handling of the train.
In Birmingham, etc., R. Co. v. Wilmer, 97 Ala. 165, 168,11 So. 886, 887, it was said:
"Jerking with some degree of violence may therefore be said to be generally necessary and incident to the starting of such trains, and the fact that it occurs in a given instance with that degree of violence which is usual under the particular circumstances as to grade, character of cars, and the like is no evidence of negligence in setting the train in motion."
The cases referred to and reviewed in Dorman's Case, supra, are concerned with jerks and jars in the starting and stopping of trains, and, therefore, the rules of law therein applied are not strictly applicable to the circumstances of the instant case, involving merely the usual and ordinary jerking of a freight train while in motion. Hence the observation made in Birmingham, etc., R. Co. v. Wilmer, supra, quoted in the minority opinion, that the fact that a train was jerked into motion "with such force and suddenness as to hurl employés from the top of it," was itself some evidence for the jury that the jerk was unusually and negligently severe, is not pertinent here, even if soundly applied to the facts of that case.
Here, as already shown, there is no evidence of any violent jerks or jars, and the mere fact that there was a jerk which caused him to lose his balance and fall between the cars, while walking along without support, cannot justify the inference that the jerk was unnecessarily severe and negligent, especially in the face of the affirmative testimony of all the witnesses, including plaintiff's that the jerking, as far as there there was any, was no more than is usual in the operation of all freight trains after they are put in motion, and therefore of the sort which no care on the part of the engineer could prevent.
We think that the evidence fails to show, either directly or by any legitimate inference, that there was any negligence in the operation of the train, and that the trial judge erred in refusing to give for defendant the general affirmative charge, as requested. Our view is that there is no material conflict in the evidence on the question of the negligent jerking of the train, vel non; and, in particular, answering a contention of appellee's counsel, there is no such conflict in the testimony of the witness Cunningham, which, taken as a whole, simply fails to support the necessary inference of negligence in the operation of the train.
Another contention urged in negation of the propriety of the general affirmative charge for defendant is that the bill of exceptions shows that the witness Cunningham illustrated the jerking of the train by some gestures made with her hands; and that since these gestures are not and could not be shown by the bill of exceptions, the appellate court cannot pass upon the sufficiency of the whole evidence as it was presented to the trial court.
We are of the opinion, however, that, from the nature of the thing described, as well as from the spoken language which the gestures accompanied, the gestures were not of material importance to an understanding of the meaning and effect of the witness' testimony; and that our full understanding of it is in no wise impaired by our inability to observe the dramatic feature noted in the bill of exceptions. Everybody understands the jerking of a freight train, and gestures can add nothing to a verbal description of its movements.
For the error noted, the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
McCLELLAN, THOMAS, and MILLER, JJ., dissent.