Propst v. Georgia Pac. Ry. Co.

• Decision Date: 22 February 1888
• Parties: PROPST v. GEORGIA PAC. RY. CO.
• Court: Alabama Supreme Court

3 So. 764

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.

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 present action, by a minor, for an injury done to himself, cannot be maintained. In Iron Co. v. Brawley, ante, 555, we decided this question against the views of the appellant. We held that the minor, or, in case of his death, his personal representative, can maintain the action; or that the father, or, in certain events, the mother, may sue; but we held that a suit by one was a bar to a suit by the other. See, also, "Act to define the liabilities of employer," etc., approved February 12, 1885, (Sess. Acts, 115; Code 1886, § 2590.)

The circuit court did not err in allowing the amendment of the name of the corporation, substituting railway for railroad. It was not an entire change of a sole party, but only a change of a part of the name. Contracting Co. v. Meyer, 51 Ala. 325; Church v. Price, 42 Ala. 47; Insurance Co. v. Roberts, 60 Ala. 431; Railway Co. v. Yeates, 67 Ala. 164.

The proof tends to show that the plaintiff, Propst, had served the defendant railway company in the capacity of brakeman for two or more months, but at the time of the accident and injury complained of he was not in that employment. He was then hired at monthly wages to serve as watchman at Patton Mines, one of the stations on the railroad. He had been employed to do this service by the superintendent, and his duties as watchman were local,-confined to the place or station, Patton Mines. There was conflict in the testimony whether or not the superintendent had instructed Propst to obey the orders that might be given him by the conductor and engineer of the train hereafter mentioned. A train of defendant, with Waving as conductor, was passing down the road with loaded freight cars. One of the three brakemen on the train was sick; and the conductor, feeling that he had not sufficient available force of brakemen to manage his train, either requested or commanded the plaintiff to go with him, and supply the place of the sick brakeman. The plaintiff went with him as brakeman, but it was not shown how many miles he had traveled in that capacity. Enough is shown to convince us that he had gone 30 or 40 miles or more before he reached the station at which he was injured. The conductor testified that he had no authority from the superintendent or from the defendant, to engage or utilize the services of the plaintiff in the capacity of brakeman. Express authority for this purpose was not necessary. The circumstances themselves, about which there is no conflict of testimony, gave him the authority. In such an emergency there must be discretion and authority somewhere to supply the place of disabled or missing servants; and no one could exercise this power so well or prudently as the conductor in charge of the train. We will therefore treat the plaintiff as the lawfully employed servant of the company. Railroad companies are responsible for the conduct of their agents and officials, done in the natural or necessary discharge of duties incident to the service they are employed in. Railroad Co. v. Huffman, 76 Ala. 492; Railroad Co. v. Heddleston, 82 Ala. 218, 3 South. Rep. 53. The first three counts of the complaint as...