Adams v. Southern Ry. Co.

• Decision Date: 13 January 1910
• Citation: 166 Ala. 449,51 So. 987
• Parties: ADAMS v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

51 So. 987

166 Ala. 449

ADAMS v. SOUTHERN RY. CO.

Supreme Court of Alabama

January 13, 1910

Rehearing Denied Feb. 26, 1910.

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

Action by Sara A. Adams against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The first count in the complaint charges that the intestate was employed in the service of the defendant as a switchman in its yards in the city of Anniston, Ala., and while he was so employed and engaged in and about the discharge of his duties connected with said employment some of the servants, agents or employés of the defendant, whose name or names are to plaintiff unknown, and who then and there had charge of a locomotive upon a railway then and there owned or used by the defendant, so negligently backed such locomotive and the train attached thereto upon said railroad track as to cause one or more cars standing on said track to run upon or over plaintiff's intestate, and injure him so that he died.

Count 17: "The plaintiff, Sara A. Adams, suing as the administratrix of the estate of Percy Adams, deceased, claims of the defendant, the Southern Railway Company, a corporation, the sum of $20,000 as damages, for that heretofore, to wit, on April 25, 1907, plaintiff's intestate was in the service or employment of defendant as a switchman in its yards in the city of Anniston, Alabama, and while he was so employed he was upon or near the footboard of the engine, upon, around, and about which he worked as such switchman, where he had a right to be; and plaintiff avers that, while her said intestate was situated as aforesaid there was another locomotive or engine upon a railroad track owned or used by the defendant, which said other locomotive or engine was then and there in charge of and being operated by the agents, servants, or employés of the defendant, but whose name or names are unknown to the plaintiff. And the plaintiff avers that the engine upon, around, and about which her said intestate worked as such switchman, at the time of the injury to her said intestate, was standing still, or was dead, upon the side track, then and there owned or used by the defendant, and that the said other engine or locomotive in charge of and being operated by the agents, servants, or employés of the defendant was upon the main line or track of the defendant, and was attached to a train of cars; and before the engine on which plaintiff's intestate was had pulled out on said main line southward, but that the agents servants, or employés of the defendant in charge of and operating said other engine or locomotive, when said engine had reached a certain switch near Oxanna Station on defendant's said main line track, notwithstanding the fact that they knew or ought to have known that the switching crew of which plaintiff's intestate was a member was on the side track in said yard, or was likely to be there, and notwithstanding the fact that they knew or ought to have known that to back their engine and cars into said side track would likely injure some one there, nevertheless the said agents, servants, or employés of the defendant in charge of and operating said other locomotive or engine, in reckless disregard of the well-known or probable consequences of such act, and without warning plaintiff's intestate and others similarly situated by bell, whistle, flagman, or other device of the approach of said engine or locomotive into and upon said track, and the car or cars then and there being moved by said engine struck another car or cars then and there standing upon said side track, whereby the same was caused to run upon or over said side track, inflicting injuries, from which he died."

Count 18: Same as 17, down to and including the words, "where he had a right to be," and adds: "Some of the agents, servants, or employés of defendant, whose name or names are unknown to the plaintiff, and who then and there had charge of another locomotive or engine, then and there owned or used by the defendant, and which said other locomotive or engine was then and there upon a railway track owned or used by the defendant, while in the conduct operation, and running of the same, did wantonly, recklessly, or intentionally back said locomotive or engine and some cars upon or over said plaintiff's intestate, so injuring him that he died."

Count 20 is similar in all respects to count 17.

Tate & Walker, for appellant.

Knox, Acker, Dixon & Blackmon, for appellee.

SAYRE J.

Plaintiff's intestate came to his death as the result of injuries received while in the employment of the defendant. Suit was brought under the employer's liability act. To the complaint as originally framed a number of amendatory counts were added, to all of which, except that numbered 20, demurrers were sustained. Such rulings as related to those added counts which charged simple negligence need not be considered. The original counts, upon which the case was tried, stated plaintiff's case with such generality of averment as to permit proof of every variation alleged in the counts proposed to be added, nor does it appear that, in effect, the plaintiff was in any respect embarrassed or restricted in the presentation of the evidence to sustain her contention that her intestate had been killed by the negligence of defendant's employés. If there was error here, it was harmless error.

Counts 17 and 18, which were intended to charge wanton or intentional wrong, must be noticed briefly. In Central of Georgia v. Lamb, 124 Ala. 172, 26 So. 969, it was held that an employer is not liable to an employé for injuries resulting from the wanton or willful wrongdoing of fellow employés, except in the instances provided for in the employer's liability act. These counts were framed under that act, and showed that plaintiff's intestate and the employé of whose negligence complaint is made were fellow servants. They have a common defect, for they fail to aver categorically that plaintiff's intestate was at the time of his injury engaged in or about the business of the defendant. The averment, construed without violence against the pleader, is, in substance, no more than that, while he was in a general way in the employment of the defendant as a switchman, he was upon or near the footboard of the engine upon which he worked, where he had a right to be. The facts stated, it may be conceded, afford an inference more or less strong...