3 So. 764 (Ala. 1888), Propst v. Georgia Pac. Ry. Co.

Citation:3 So. 764, 83 Ala. 518
Opinion Judge:STONE, C.J.
Party Name:PROPST v. GEORGIA PAC. RY. CO.
Attorney:McGuire & Collier, for appellant. Nesmith & Sanford, for appellee.
Case Date:February 22, 1888
Court:Supreme Court of Alabama
 
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Page 764

3 So. 764 (Ala. 1888)

83 Ala. 518

PROPST

v.

GEORGIA PAC. RY. CO.

Supreme Court of Alabama

February 22, 1888

Appeal from circuit court, Fayette county; S. H. SPROTT, Judge.

This was an action brought by William H. Propst, by his next friend, to recover damages for personal injuries done to the plaintiff while in the employ of the defendant, the Georgia Pacific Railway Company. The suit, as originally brought, was against the Georgia Pacific Railroad Company, and a plea of abatement was interposed by the defendant on account of the misnomer of the defendant; but, upon motion of the plaintiff, the court allowed the plaintiff to amend his complaint by putting railway instead of railroad wherever the last-named word occurred in the complaint. To this the defendant duly excepted. There were several demurrers interposed by the defendant, and sustained by the court, but the court allowed the plaintiff to amend his complaint; and upon the amendment he added the fourth count of the complaint: to which the defendant demurred, but the court overruled his demurrer, and the defendant duly excepted. The facts as produced on the trial are sufficiently stated in the opinion. Among the other charges in writing given by the court at the request of the plaintiff are the following: (2) "That the physical pain and suffering ought to be taken into account in estimating the damages in any action to recover for a personal injury occasioned by negligence, irrespective of any question or motive whatever." (3) "The master is bound to use ordinary care-such care as men of ordinary prudence exercise under like circumstances for their own protection-in the selection of careful and skillful servants, and in furnishing safe and fit materials and appliances, or machinery necessary and proper for the service; and for injuries arising from a breach of this duty in either particular he is liable to the servant." (4) "If the jury believe, from the evidence, that the defendant's machinery was dangerous and unsafe, when the plaintiff received the injury, either in the method of its construction, or in the materials of which it is composed, the defendant, if he knew, or might by due care have ascertained, the fact, is liable for resulting injuries, unless they further believe that plaintiff knew that said machinery was dangerous and unsafe." The defendant excepted to the giving of each of these charges, and now assigns these several rulings of the court as error.

Page 765

McGuire & Collier, for appellant.

Nesmith & Sanford, for appellee.

STONE, C.J.

It is contended that under the act approved January 23, 1885, (Sess. Acts, 99; Code 1886, §§ 2587-2589,) the...

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