Mobile & O.R. Co. v. George

Citation10 So. 145,94 Ala. 199
CourtSupreme Court of Alabama
Decision Date04 November 1891
PartiesMOBILE & O. R. CO. v. GEORGE.

Appeal from circuit court, Mobile county; W. E. CLARKE, Judge. Reversed.

Action by James George against the Mobile & Ohio Railroad Company to recover damages for personal injuries sustained while performing the duties of a brakeman for defendant. From a judgment for plaintiff, defendant appeals.

The complaint, as originally filed, contained 25 counts, and it was afterwards amended by the addition of 2 more counts. The defendant demurred to each count separately, and the court sustained the demurrers to all of the counts except Nos. 1 19, 21, 23, 24, 26, and 27, and overruled the demurrers to these counts. The twenty-fourth count was stricken out by the plaintiff. The first count, after alleging that the defendant operated a railroad in this state, continued as follows "The plaintiff was upon the defendant's said track at the instance and request of the defendant, and it was the duty of the defendant to manage and operate its engine and trains upon said track so as not to injure the plaintiff while so upon said track; but defendant, disregarding its said duty in the premises, negligently ran over and injured the plaintiff with one of its engines, and thereby caused plaintiff great pain and suffering," etc. The demurrers to this count were on the grounds that it did not show the violation of any legal duty due from the defendant to plaintiff, and because it failed to show with sufficient particularity the nature of the neglect, and the circumstances under which plaintiff was injured. The substance of the nineteenth count was that the plaintiff while in the discharge of his duty as switchman, was run over by one of defendant's engines, by reason of the negligence of a switchman in the employment of defendant, to whose orders plaintiff was bound to conform, and did conform and that said switchman negligently ordered the plaintiff to uncouple certain cars from the engine, "although said engine was so constructed that the plaintiff could not uncouple said cars without going between said engine and said cars, and the plaintiff conformed to said orders, and went between said cars, and in so doing was run over by said engine and injured." The demurrers sustained to this count were upon the grounds that it did not allege that when said switchman ordered the plaintiff to uncouple said cars he knew, or might have known, of the defective construction of said engine, by the exercise of reasonable diligence; that said count did not allege that plaintiff did not know that said engine was so constructed that he could not uncouple said engine without going in between said engine and said cars; and that it was not alleged that said engine was defectively constructed. The twenty-first count based its grounds of recovery upon the fact that plaintiff was injured while obeying the orders of the defendant's yard-master under whose directions plaintiff was; and alleged that "the defendant's yard-master negligently ordered the plaintiff to couple and uncouple certain cars; that he uncoupled same, and in so doing was run over by said engine and injured." The grounds of demurrer to this count were that it was not alleged in what particular the defendant's yard-master was negligent, and that the allegations contained in said count show that plaintiff's injuries were the direct result of an accident. The twenty-third count, after alleging that the plaintiff was a switchman in the employment of defendant, alleged "that while the plaintiff was uncoupling the said engine from one of defendant's cars, in performance of his duty as such switchman, said engineer negligently ran said engine forward, and knocked plaintiff down and injured him." The ground of demurrer to this count was that it did not allege that at the time the plaintiff was uncoupling said engine from one of the defendant's cars the engineer knew, or might have known, by the exercise of ordinary diligence, that said plaintiff was between said engine and cars. The twenty-sixth count, after stating that the defendant was a railroad corporation operating a railroad in this state, and as part of its business it was necessary to have cars taken in and out of its yards, and that brakemen were employed, whose duty it was to couple and uncouple the cars, alleged that it was the duty of the defendant "to use due care in furnishing for the use of its said employes in said business, and for their protection, fit and proper engines, and to exercise due care to keep such engines in fit and proper condition for such uses; but, wholly disregarding its duties in the premises, defendant negligently used in its said business a steam-engine or locomotive which was out of order, so that it could not be stopped promptly when making said couplings and uncouplings; and on, to-wit, the 23d day of February, 1889, plaintiff was in the employment of the defendant as one of its brakemen, and as such it became and was his duty to go between said engine and defendant's cars, and while so between them, and by reason of said negligently defective condition of said engine, it could not be and was not stopped in proper time, and by reason of said defect it ran over and injured plaintiff." The defendant demurred to this count, on the grounds that it failed to allege whether the said engine was out of order when first employed and used by defendant, or whether it afterwards became out of order; and because it did not allege that the defendant, or any person superior to the plaintiff, engaged in the employment of the defendant, knew of the defective condition of the engine, or might have known of the same, by reason of ordinary diligence, and because it did not allege in what particular said engine was defective. The twenty-seventh count, after alleging the operation of a railroad by the defendant, and the necessity of moving its cars from place to place in its yard, and the employment of brakemen and switchmen by the defendant to couple and uncouple its cars, alleged that it was the duty of the defendant "to use due care in furnishing for the use of said employes in its said business, and for their protection, an engine with a platform or other device upon which its brakemen could stand while coupling or uncoupling the engine to and from the car to be moved in and out of its said yard, and from place to place therein; but, wholly disregarding its duty in the premises, defendant negligently used in its said business an engine that was not provided with such platform or other device, and on, to-wit, the 3d day of February, 1889, plaintiff was in the employment of defendant as one of its brakemen, and as such it became and was his duty to couple or uncouple the said engine from its cars in its said yard, and by reason of said engine not being provided with a platform or other device, as aforesaid, plaintiff was obliged to walk between said engine and cars, and by reason of the said defective condition of said engine, in not being so provided with such platform or other device, and while between said engine and car, in the performance of his duty, as aforesaid, said engine ran over and injured the plaintiff." The defendant demurred to this count on the grounds that it was not shown therein that it was the custom of all well-managed railroads to furnish engines with platforms or other devices to its employes, engaged in coupling and uncoupling cars; that it was not alleged that the defendant agreed to furnish plaintiff exclusively an engine with a platform or other device attached to it, for the purpose of switching in said yard, and that no facts are stated in said count whereby it was shown that it was the legal duty of the defendant to furnish said plaintiff an engine with a platform or other device attached thereto, for the purpose of coupling and uncoupling cars. The overruling of all of the grounds of demurrer to each of the counts, as stated above, constitutes the first six assignments of error. The defendant pleaded the general issue, and two special pleas to the twenty-seventh count, the substance of which are stated in the opinion.

The evidence introduced by the plaintiff tended to show that on February 3, 1890, while he was at work in the yard of the defendant at Mobile, and in the discharge of his duty as switchman, under the direction of one Matt Eagan, an older switchman, he went between a regular road-engine, which was being used as a switch-engine in the yard of the defendant and a car, to uncouple them; that just as he pulled the pin the pilot or cow-catcher ran upon him, threw him down, and the front wheels ran over him, cutting off both of his legs at unequal distances from his body. It was further shown that up to Friday before the accident, which occurred on Sunday, there was used before the engine a flat-car, "which made it less dangerous to couple and uncouple the cars in the yards, and that the yard-master ordered the flat-car, which had been used for this purpose, to be carried out on the road, and thereafter a regular road-engine was used alone, for switching purposes. It was further shown that the danger of coupling and uncoupling cars was greatly increased by the use of a road-engine instead of a regular switch-engine, and especially so by the use of such engine without the flat-car in front of it. There was also evidence tending to show that that throttle-valve of the engine and one of the flues leaked, and that the effect of the leak in the throttle-valve was to cause the lever to jerk away from the engineer, and make the engine move in a direction opposite to that desired, whenever the engineer undertook to shut the throttle or stop the engine. There was also evidence tending to show that when the engine caught ...

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