Creola Lumber Co. v. Mills

• Decision Date: 20 December 1906
• Citation: 42 So. 1019,149 Ala. 474
• Parties: CREOLA LUMBER CO. v. MILLS.
• Court: Alabama Supreme Court

42 So. 1019

149 Ala. 474

CREOLA LUMBER CO. v. MILLS.

Supreme Court of Alabama

December 20, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Robert Mills against the Creola Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Stevens & Lyons, for appellant.

Gregory L. & H. T. Smith and Chas. L. Bromberg, for appellee.

DENSON J.

This is a suit by the plaintiff (appellee) against the defendant Creola Lumber Company, a corporation, to recover damages for a personal injury suffered by him while in the defendant's employment as a brakeman. The complaint as it was originally filed contains three counts. Two counts were afterwards added by amendment. The court, at the request of the defendant in writing, charged the jury that the plaintiff could not recover on the third and fifth counts; so that the only assignments of error with respect to the court's rulings on the demurrers addressed to the complaint, which must be considered, are those which relate to and challenge the sufficiency of counts 1, 2, and 4 as they were last amended on the 9th day of February, 1905. After the amendment of February 9, 1905, was made to the complaint, the defendant was allowed to refile to the complaint as amended the demurrer filed December 26, 1904.

The first count is grounded on the second subdivision of section 1749 of the Code of 1896 . This count alleges that the defendant was engaged in operating a train propelled by steam for hauling logs near Creola, in Mobile county, and employed an engineer, fireman and the plaintiff to operate said log train. From these allegations, in connection with subdivision 2 of section 1749 of the Code of 1896, there arose a duty on the part of the defendant to the plaintiff to see to it that he was not injured by the negligence of any person, in the service of the defendant, who had superintendence intrusted to him, while in the exercise of such superintendence. K. C., M. & B. R. R. Co. v. Burton, 97 Ala. 241, 12 So. 88. This count, after alleging that plaintiff was working under the engineer, Frank Driesbach, alleges that said Driesbach was intrusted by defendant with the superintendence of the operation of said log train and of the plaintiff, and that while the plaintiff was engaged in the service of defendant in operating the log train he was injured, setting forth the nature and extent of the injury. Then follows this averment, namely: "And the plaintiff avers that said injuries were caused by reason of the negligence of said engineer [[Driesbach] whilst in the exercise of such superintendence aforesaid."

One insistence of the appellant is that the count does not advise the defendant whether it must defend against negligence on the part of the engineer as such, or negligence on the part of the same man in his capacity as superintendent of the plaintiff. We think this criticism of the count is without foundation, for the only negligence counted on is that of Driesbach in his capacity as superintendent and whilst in the exercise of such superintendence; and uncertainty as to which subdivision of the statute the first count is based on cannot be predicated of the count. It has been many times held by this court that, the duty to exercise care being shown and the failure to perform that duty, "the negligence causing the injuries complained of may be well averred in the most general terms, little, if at all, short of the mere conclusions of the pleader; and this, upon the entirely sufficient consideration, among others, that if the defendant has been guilty of negligence he knows as well or better than the plaintiff can in what that negligence consisted." So there is no merit in the grounds of the demurrer raising the question of generality of averment as to negligence. Postal Tel. Co. v. Jones, 133 Ala. 217, 32 So. 500, and cases there cited; Bear Creek Mill Co. v. Parker, 134 Ala. 293, 32 So. 700; Seaboard Mfg. Co. v. Woodson, 94 Ala. 143, 10 So. 87; Illinois Car & Equipment Co. v. Walch, 132 Ala. 490, 31 So. 470. The demurrer to the first count was properly overruled.

The second count of the complaint, after averring, substantially as was done in the first count, the relation of master and servant existing between the defendant and plaintiff, the superintendence of Driesbach, and plaintiff's injury, ascribes the injury to the negligence of Driesbach in this language: "And the plaintiff avers that said injuries were caused by reason of the negligence of said Frank Driesbach, who was in the service or employment of the defendant, and to whose orders or directions the plaintiff at the time of the injury aforesaid was bound to conform, and did conform, and said injuries resulted from his having so conformed, and whilst said Frank Driesbach was in the exercise of such superintendence aforesaid." This count is based on subdivision 3 of section 1749 of the Code of 1896, and the question is whether it is sufficient as against the demurrer filed to it, which is the same demurrer as that filed to the first count. With respect to the demurrer to the second count it is insisted in the brief of appellants: First, that the count combines the allegations required under subdivisions 2, 3, and 5 of section 1749 of the Code of 1896, and there is nothing in it to advise the defendant whether it must defend against a claim based on a negligent superintendence of the plaintiff by Driesbach, or a negligent ordering or directing of the plaintiff by the said Driesbach, or a negligent handling of his train by Driesbach. Second, that the count fails to aver what order Driesbach gave, or that the order or direction, conformance to which it is alleged caused the injury, was negligently given by Driesbach.

In respect to the first insistence it is sufficient to say that it is no objection to the count under this subdivision that it avers that the negligence complained of was that of a certain employé of the defendant, who was an engineer, and who had superintendence intrusted to him in respect to the operation of the train. This, as was said in Kansas City, Memphis & Birmingham R. R. Co. v. Burton, 97 Ala., at top of page 249, 12 South., at page 92, "is not the averment of different wrongs and causes of action, but merely the statement of the relations of the negligent person to the defendant." The gravamen of the count is the injury resulting from plaintiff having conformed to an order given by an employé of the defendant to whose orders plaintiff was bound to conform. The first insistence is, therefore, without merit. Southern Car & Foundry Co. v. Bartlett, 137 Ala. 234, 34 So. 20. It has been determined by this court that, in a count based on subdivision 3 of section 1749, the order given and conformed to should be averred, and it should also be averred that the order was negligently given. Bear Creek Mill Co. v. Parker, 134 Ala. 301, 32 So. 700; Southern Car Co. v. Bartlett, 137 Ala. 234, 34 So. 20; Dantzler v. Debardeleben Coal & Iron Co., 101 Ala. 309, 14 So. 10, 22 L. R. A. 361. Count 2 fails in these respects, and the demurrer should have been sustained, as without the averments mentioned the count fails to state a cause of action. Cases supra.

The fourth count as last amended is based on subdivision 5 of section 1749 of the Code of 1896, which provides for recovery of damages sustained by personal injury, "when such injury is caused by reason of the negligence of any person in the service or employment of the master or employer who has the charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway, or of any part of the track of a railway." The count avers that the injury "was caused by reason of the negligence of Frank Driesbach, the engineer employed by the defendant to operate said train, while so engaged in the operation thereof." It is insisted that the count fails to aver that the engineer, Driesbach, had "charge or control" of the train. It is argued that the expression "engaged in the operation thereof," used in the count, is not the equivalent of the statement that Driesbach had the "charge or control" of the train. While it would have been more direct pleading to have averred that Driesbach was in charge or control of the train, yet we think that is the only deduction to be drawn from the averments employed in the count, and the demurrer was properly overruled.

There are many pleas to the different counts of the complaint, but, following our rule with reference to omission by appellant's counsel to insist on errors assigned, we will only consider the rulings of the court on the demurrers to pleas numbered 4 and 5 and plea B. It cannot be said as a conclusion of law that under all circumstances it is negligence for an employé, a brakeman, to dismount from a moving train and attempt to get upon the locomotive propelling the train, even though the act of dismounting should be unnecessary. Plea 4 fails to set out facts which on their face show contributory negligence on the part of the plaintiff, and the demurrer was properly sustained. Birmingham Ry. & Elec. Co. v. Brannon, 132 Ala. 431, 31 So. 523; Watkins v. Birmingham Ry. & Elec. Co., 120 Ala. 152, 24 So. 392, 43 L. R. A. 297; Osborne v. Ala. Steel & Wire Co., 135 Ala. 571, 33 So. 687.

The fifth plea is not subject to the demurrer assigned to it, and the court improperly sustained the demurrer. But issue was...