Appeal
from circuit court, Monroe county; John C. Anderson, Judge.
Action
by George Parker against the Bear Creek Mill Company. From a
judgment for plaintiff, defendant appeals. Reversed.
This
suit was brought to recover damages for personal injuries
sustained by the plaintiff while in the employ of the
defendant as a train hand or loader. The complaint contained
five counts. Under the opinion it is only necessary to refer
to the first, third and fifth counts. The substance of the
first count is sufficiently stated in the opinion. The third
and fifth counts are as follows: Third count. Plaintiff
further claims of the defendant the sum of ten thousand
dollars as damages for that heretofore to wit: On the 23d day
of November, 1899, the defendant then and there managing and
operating a logging railroad in said county of Monroe and
plaintiff being then and there in the service and employment
of the defendant as a train hand or loader and while in the
performance of his duties as such train hand or loader was
caught between a loaded and unloaded car of the defendant and
was thrown under the break beam or wheel of one of said cars
whereby his right leg was so crushed, mutilated and bruised
as to render the amputation thereof necessary below the knee
thereof, and plaintiff alleges that then and there a person
whose last name as plaintiff is informed was Echols, but
whose first name is to plaintiff unknown and which said
Echols was then and there in the service or employment of the
defendant as a locomotive engineer and as such locomotive
engineer had the charge or control of a locomotive or train
on said logging railroad or a part of the track of said
railroad caused the aforesaid injury to plaintiff by reason
of his negligence as such locomotive engineer. And plaintiff
alleges that he not only suffered his loss of his said leg as
aforesaid, but that by reason of his said injury he also
suffered great bodily and mental pain and anguish to his
damages as he says in the sum of to wit, ten thousand
dollars."
"Fifth
count. Plaintiff claims of the defendant ten thousand dollars
as damages for that heretofore to wit, on the 23d day of
November, 1899, in said county of Monroe the defendant was
then and there managing and operating a logging railroad
track and a locomotive and timber cars thereon and plaintiff
was then and there in the employ of the said defendant as a
train hand or loader and while in the discharge of his duties
under said employment plaintiff was caught between two of the
said cars of the said defendant and his right leg so crushed
mangled and bruised as to cause him to lose the same below
the knee thereof as well as to cause him great bodily and
mental suffering, and plaintiff avers that his said injuries
were caused by reason of the negligence of one Bill Simmons
who was then and there in the service or employment of the
defendant and was then and there intrusted with the
superintendence of the train hands or loaders on
defendant's said cars and the coupling thereof, and that
said injury occurred while the said Bill Simmons was in the
exercise of such superintendence, and plaintiff avers that by
reason of the loss of said leg and the said bodily and mental
suffering he has been greatly damaged in to wit, the sum of
ten thousand dollars, and that such injuries were sustained
while plaintiff was endeavoring to couple two of said cars
under the said superintendence of the said Bill
Simmons."
The
defendant demurred to each of the counts of the complaint
upon the following grounds: "(1) The acts of negligence
sought to be charged are not stated with that definiteness
and certainty required by law. (2) The only charge of
negligence is in the form of a conclusion of the pleader
without a statement of the facts from which the conclusion is
drawn. (3) The facts stated do not make out a case of
liability under the statutes of Alabama on the part of an
employer to an employee for an injury done through the
negligence of a fellow servant. (4) The facts stated do not
show negligence on the part of the defendant or its
employees. (5) The facts stated do not show negligence on the
part of Echols, the engineer. (6) The facts stated do not
show negligence on the part of Bill Simmons. (7) The facts
stated fail to show that the engineer backed the train at a
greater rate of speed than was safe and proper under the
circumstances."
The
demurrer to each of the counts of the complaint was
overruled, and to each of these rulings the defendant
separately excepted. The defendant filed 19 pleas; but under
the opinion, it is not necessary to set out all of these
pleas at length. The 5th, 6th, 9th, 10th, 12th pleas were as
follows:
"(5)
That defendant had established a rule requiring all of its
trainmen not to stand between the rails of its railroad
track while assisting in coupling cars by putting the
coupling pin in place when the rooster entered the
drawhead; that this rule had been made known to the
defendant before the injury complained of occurred; that
when the injury complained of occurred plaintiff was
engaged in assisting to couple defendant's cars by
putting the coupling pins in place when the rooster entered
the drawhead, and, in violation of the said rule, was
standing between the rails of defendant's railroad
track.
"(6)
That about dark on the evening that the injury complained
of occurred, the plaintiff, together with the entire train
crew, of which he was a member, had been ordered by
defendant's foreman, who had the control and
supervision over all of said train crew, to cease work for
that day, but some of said train crew including plaintiff
disregarded the said order and attempted to continue work
and that while plaintiff was continuing to work after dark
in disobedience of the said order, the injury complained of
occurred."
"(9)
That about dark on the evening that the injury complained
of occurred, the plaintiff, together with the entire train
crew, of which he was a member, had been ordered by
defendant's foreman, who had the control and
supervision over all of said train crew, to cease work for
that day, but some of said train crew including plaintiff,
disregarded the said order and attempted to continue work,
and that while plaintiff was continuing to work after dark
in disobedience of the said order, the injury complained of
occurred, and that such disobedience contributed
proximately to the injury complained of.
"(10)
That plaintiff by his own negligence contributed
proximately to the injury of which he complains by
attempting to couple the cars as set out in the complaint
without having a sufficient light."
"(12)
That plaint
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