Alabama Great Southern R. Co. v. Cardwell

• Decision Date: 11 April 1911
• Citation: 55 So. 185,171 Ala. 274
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. CARDWELL.
• Court: Alabama Supreme Court

55 So. 185

171 Ala. 274

ALABAMA GREAT SOUTHERN R. CO. v. CARDWELL.

Supreme Court of Alabama

April 11, 1911

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by Charlie Cardwell against the Alabama Great Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The complaint is as follows: Count 1: "Plaintiff claims of the defendant the sum of $20,000 as damages, and avers that the defendant, on, to wit, January 8th, operated a line of railroad through Bessemer, Jefferson county, Ala., and operated within its yard limits in Bessemer, Ala., to propel cars in shifting and placing cars in said yard limits, a switch engine, and had in charge and control of its said yard and its employés engaged in operating said switch engine one C. E. Hardy as a yardmaster, and who had intrusted to him by the defendant superintendence of said engine, cars, and employés of the defendant at Bessemer, Ala., and on said date plaintiff was in the employment of the defendant on said yard as a foreman of the switching crew of the said switch engine and in the operation of same in defendant's said yard at Bessemer, Ala., and under the supervision of said C. E. Hardy as yardmaster; that on, to wit, January 8, 1909, the plaintiff, C. E. Hardy, and the switching crew with defendant's said switch engine in said yard at Bessemer were engaged in weighing cars on the defendant's scales at Bessemer, Ala., in said yard which was being directed by said C. E. Hardy; that in propelling one of said cars upon the scales, and after said car had been uncoupled from the other cars attached to said switch engine, said car rolled past or beyond said scales, and was left uncoupled from said engine and other cars, and standing to itself, for the purpose of being weighed on said scales; that said C. E Hardy, as yardmaster, and the plaintiff, acting under the direction and supervision of said C. E. Hardy, was engaged in shoveling or pushing said car back upon said scales to weigh same, and after said car had been uncoupled from said engine and other cars, and in pushing or shoving said car it was necessary for plaintiff to take hold of or roll the wheel of said car, leaving the view entirely obstructed between the plaintiff and said switch engine, and which was known to the said yardmaster, the said C. E. Hardy; that notwithstanding plaintiff's peril and dangerous position under the said car, said C. E. Hardy as said yardmaster or superintendent permitted and allowed said engineer managing and operating said engine to propel said engine against said car, and propel said car upon or against the plaintiff, and as a proximate consequence thereof said car ran upon or against the plaintiff's leg [here follows the catalogue of injuries and special damages], all to his great damage as aforesaid. And plaintiff avers his injuries were caused, and in the manner aforesaid, owing to and as a proximate consequence of the negligence of said C. E. Hardy defendant's said yardmaster, and to whom the defendant had intrusted superintendence of plaintiff, and the operation of said engine and car in said yard, in this: Said C. E Hardy, well knowing the plaintiff's dangerous and perilous position under said car, and well knowing said engine was being propelled against said car, said C. E. Hardy negligently permitted and suffered said car to be propelled and shoved upon or against plaintiff." (2) Same as 1, down to and including the words, "to his great damage as aforesaid," and adds the following: "And plaintiff avers that he was injured as aforesaid, and in the manner aforesaid, owing to and as a proximate consequence of the negligence of said C. E. Hardy, said yardmaster, who had intrusted to him superintendence by the defendant over the said car, engine, and the plaintiff, in this: Said C. E. Hardy negligently failed to notify or warn the plaintiff that said engine was being propelled against said car, at the time having a knowledge of the dangerous and perilous position of the plaintiff under said car, and with a knowledge that said engine was being propelled against said car." (3) Same as 1, down to and including the words, "to his great damage as aforesaid," and adds the following: "And plaintiff avers that his said injuries were caused, and in the manner aforesaid, owing to and as a proximate consequence of the negligence of said C. E. Hardy, yardmaster, and to whom the defendant had intrusted superintendence over the said car, and the said engine and switching crew, including the plaintiff, in this: Said C. E. Hardy negligently failed to signal the engineer in charge of the engine to stop, at the same time knowing of the perilous position of plaintiff under said car, and with a knowledge that said engineer was propelling said engine against the said car." Count 5: "Plaintiff claims of the defendant the further sum of $20,000 damages, and avers that defendant, on, to wit, January 8, 1909," continuing same as count 1, down to and including the words, "to his great damage as aforesaid," and adds the following: "And plaintiff avers that his injuries and damages as aforesaid, owing to and as a proximate consequence of the said engine backing up against said car and pushing or propelling said car upon or against the plaintiff as aforesaid, which was done in obedience to particular instructions to back said engine up against and shove said car, negligently given by the said C. E. Hardy, a person delegated with the authority of the defendant in that behalf."

The demurrers to the first three counts take the point that said count fails to show or aver that the said negligence of the said Hardy was committed whilst the said Hardy was in the exercise of the superintendence alleged, and that it was not averred or shown that it was the duty of said Hardy to notify or warn plaintiff that the said engine was being propelled against the said car; to the fifth count, that it does not show that the defendant, its agents or servants, violated any duty which it, or they, owed the plaintiff, and because the count shows that plaintiff was injured as a proximate result of the negligence of the fellow servant of the plaintiff, for which the defendant is not responsible, and then adds the other grounds of demurrer interposed to the other count.

A. G. &...