Alabama G.S.R. Co. v. Davis

• Decision Date: 05 November 1898
• Citation: Alabama G.S.R. Co. v. Davis, 24 So. 862, 119 Ala. 572 (Ala. 1898)
• Parties: ALABAMA G. S. R. CO. v. DAVIS.
• Court: Alabama Supreme Court

24 So. 862

119 Ala. 572

ALABAMA G. S. R. CO. v. DAVIS.

Supreme Court of Alabama

November 5, 1898

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by J. M. Davis against the Alabama Great Southern Railroad Company for personal injury.From a judgment for plaintiffdefendant appeals.Reversed.

The complaint contained nine counts, the substance of which was as follows: "(1)The plaintiff claims of the defendant which is a corporation under the laws of Alabama, the sum of ten thousand dollars as damages, for that, whereas the defendant was engaged in the business of operating a railroad in Etowah county, Alabama; that the plaintiff was at the time of the injuries complained of an employé of defendant engaged in the discharge of his duties as such employé, and that whilst plaintiff was in the employ of defendant, on the 18th day of September, 1893, in Etowah county, Alabama plaintiff had his ankle broken, and suffered great mental and bodily pain, and lost his time, and incurred large doctor's bills and nurse hire, and was disfigured, and disabled for life from earning a living, and permanently injured; and plaintiff avers that his injuries were caused by the negligence of an engineer of defendant who then and there had charge or control of an engine of defendant,-hence this suit.(2)Plaintiff claims of defendant ten thousand dollars as damages, for that, whereas defendant was at the time of the injuries complained of a railway corporation, and was using and operating a steam engine in the state of Alabama and plaintiff was then and there an employé of defendant, engaged in the discharge of his duties as such employé, and whilst plaintiff was thus in the employ of defendant, on, to wit, the 18th day of September, 1893, he had his ankle broken, and was otherwise wounded and injured, and suffered great mental and bodily pain therefrom, and lost his time, and incurred large medical bills and nurse hire, and was disfigured, and disabled for life from earning a living, and was permanently injured; and plaintiff avers that his injuries resulted from the negligence of an engineer of defendant in running said steam engine at too high a rate of speed, and said engineer then and there had the charge or control of said engine of defendant,-hence this suit."The allegation of negligence contained in the other counts of the complaint was as follows (each count of the complaint being numbered by its corresponding number): (3) And plaintiff avers that his injuries resulted from the negligence of an engineer of defendant in running said steam engine and cars at too high a rate of speed over rails which were old, worn, and unsound and unsafe, and said engineer then and there had control of said engine of defendant,-hence this suit.(4) And plaintiff avers that said injuries resulted from the negligence of defendant's engineer in charge of said engine, in running said engine at too high rate of speed over a track that was out of repair, running the cars off the track and compelling plaintiff to jump from the cars to the ground whilst they were in motion to avoid injury from their derailment,-hence this suit.(5) And plaintiff avers that said injuries resulted from some defect in the track used by defendant, which defect arose from, or had not been discovered or remedied owing to, the negligence of defendant, or that of some person in defendant's service, and intrusted by it with the duty of seeing that said track was in proper condition, the name of said person being unknown to plaintiff.(6) And plaintiff avers said injuries were caused by a defect in the track then and there used by defendant, in that the rails of the track were old and mashed and worn, and said defect arose from, and had not been remedied owing to, defendant's negligence, or the negligence of some person in defendant's service, and intrusted by defendant with the duty of seeing that said track was in proper condition, the name of said person being unknown to plaintiff.(7) And plaintiff avers said injuries resulted from the negligence of defendant in using a track which was then and there out of repair and unsafe for use, whereby plaintiff, who was a brakeman on defendant's train, was forced to jump from the train to avoid injury from the derailment of the cars by reason of defective track as aforesaid, and said defect arose from, or had not been remedied or discovered owing to, defendant's negligence, or of some person in its service intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition.(8) And plaintiff avers said injuries were caused by the negligence of defendant in its failure to put and keep and maintain in repair the track then and there in use by it, whereby plaintiff became and was disfigured, and disabled from life from earning a living, and permanently injured; and plaintiff avers said injuries were caused by the negligence of defendant, in its failure to put and keep and maintain in repair the track then and there in use by it, whereby plaintiff became and was damaged in the sum of ten thousand dollars as aforesaid; and plaintiff avers that said failure to put, keep, and maintain the track in repair arose from, or had not been remedied or discovered owing to, defendant's negligence, or of some person in defendant's service, intrusted by it with the duty of seeing that the ways, works machinery, or plant were in proper condition.(9) Said injuries were caused by a defect in the track used by defendant, to wit, its wrong construction, and defect arose from defendant's negligence, or had not been remedied or discovered owing to its negligence, or that of some person in its service, intrusted by it with the duty of seeing that said track was in proper condition.

The defendant demurred to the complaint as follows: "(1) Said first count does not show how the injury occurred.(2) Said first count does not sufficiently disclose the facts attending the injury complained of.(3) Said first count does not show the alleged negligence of the engineer was connected with the injury complained of."To the second, third and fourth counts it demurred upon the following ground: "Said count fails to show what connection the running of said engine at too high a rate of speed had with the injury complained of."To the fifth, sixth, seventh, eighth, and ninth counts it demurred upon the following grounds: "(1) Said fifth count fails to show how the injuries complained of resulted from the defect in the track complained of.(2) Said fifth count fails to show any connection between the alleged defect in the track and the injuries complained of.(3) Said fifth count fails to show what the alleged defect in the track consisted of.(4) Said fifth count fails to show that plaintiff did not know of the condition of the track.(5) Said fifth count fails to show that defendant knew or ought to have known of the condition of the track.(6) Said fifth count shows that plaintiff was an employé, and assumed the risk of all damages arising from obvious defects in the condition of the track."These demurrers were overruled, whereupon the defendant demurred to the complaint as follows: To the first count of the complaint it demurred upon the following grounds: "(1) Said first count fails to set out in what the alleged negligence consisted.(2) Said first count fails to set out any of the facts of the alleged negligence.(3) Said first count fails to show what position plaintiff held as an employé.(4) Said first count fails to show that, at the time of the happening of the alleged injury, plaintiff was in the discharge of his duties as an employé.(5) Said first count fails to show that the engineer had charge of an engine upon the railway of defendant.(6) Said first count fails to aver that plaintiff, at the time of the happening of the injury, was in the place where the proper discharge of his duties required him to be."To the second count the defendant demurred upon the grounds as above set out to the first count, and also upon the following grounds: "(7) Said second count fails to show that the engine was being run on the railway of defendant.(8) Said second count fails to show why or how the rate of speed was too high."To the third and fourth counts the defendant demurred upon the eight grounds of demurrer as above set out, and to the fourth count assigned especially the following grounds: "(9) Said fourth count fails to show that the cars were derailed, or were about to be derailed, when plaintiff jumped.(1) Said fourth count shows on its face that plaintiff's injuries resulted from his jumping from the cars in motion, and fails to show any good reason why plaintiff jumped."To the fifth, sixth, seventh, eighth, and ninth counts of the complaint the defendant assigned the first eight grounds of demurrer as above set out, and also the following special grounds: "(9) Said seventh and eighth counts fail to aver that the defects therein mentioned arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service of defendant, and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition.(10) Said fifth, sixth, seventh, eighth, and ninth counts each fail to show that the injury was caused by any defect in the condition of ways, works, machinery, or plant connected with or used in the business of the master of employés.(11) Said seventh count shows on its face that the injuries resulted from plaintiff's jumping from the car while in motion, and fails to show any good reason why plaintiff jumped.(12) Said seventh count fails to show that an apparent necessity, arising from the negligence of defendant, existed when plain...