Alabama Great Southern R. Co. v. Brooks

• Decision Date: 17 December 1902
• Citation: 33 So. 181,135 Ala. 401
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. BROOKS.
• Court: Alabama Supreme Court

33 So. 181

135 Ala. 401

ALABAMA GREAT SOUTHERN R. CO. v. BROOKS.

Supreme Court of Alabama

December 17, 1902

Appeal from city court of Birmingham; Charles A. Senn, Judge.

Action by Nannie S. Brooks, as administratrix of the estate of B. F Brooks, deceased, against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action by Nannie S. Brooks as administratrix of B. F Brooks, an employé of appellant, to recover damages for the death of said B. F. Brooks. The first count after making the necessary preliminary averments, alleged that Brooks, while engaged in the discharge of his duties as a brakeman at Epes was caught between two cars on defendant's road and crushed and killed, and then avers that his death "was proximately caused by the negligence of Jesse Clements, who was also in the employment of said defendant, and who, under his employment, had charge or control of a locomotive engine on said railroad; that the negligence of said Clements consisted in this: that he negligently ran a car which was attached to said engine down to and against another car near or by which her said intestate was standing in the discharge of his duties, and thereby struck her said intestate crushing and injuring him as aforesaid." The second count varies from the first only in this, that it avers that Clements "negligently operated or ran the locomotive engine which he had under his control while it was attached to one or more cars or train of cars so that said car or train of cars struck her intestate, inflicting the injuries as aforesaid." The third count adopts the averments of the first count down to the description of the negligence, and then charges that Clements' negligence consisted in this: that he negligently ran an engine, with a car or cars attached thereto in the town of Epes in violation of an ordinance of that town, which is set out, prohibiting the running of trains at a greater rate of speed than six miles an hour, and that the death of Brooks was proximately caused thereby. The sixth count adopts the averments of the first count down to and including the averment that Brooks was crushed and killed, and then avers that his death was proximately caused by the negligence of one Samuel Park, "who was also in the service or employment of defendant, and under his employment had charge or control of the car or train of cars on defendant's said railroad; that said Park's negligence consisted in this: that he so negligently operated or caused to be operated said car or train of cars that they ran down upon and against her said intestate, where he was standing in the discharge of his duties, inflicting the injuries as aforesaid." To the first, second and sixth counts, separately and severally, defendant demurred, "First. Because said count is indefinite and uncertain in that it fails to allege or show of what the negligence of said Jesse Clements consisted. Second. For that said count is indefinite and uncertain in that it does not show this defendant in what respect the said Clements was negligent in running said car; whether it was running too rapidly, or in what respect he was negligent in regard thereto." These demurrers having been overruled, defendant interposed the plea of the general issue and several pleas of contributory negligence. The evidence showed that on February 15th, 1900, appellant ran from Tuscaloosa towards Meridian a local freight train consisting of many cars. This train was manned by Park, conductor; Clements, engineer; Webb, flagman, and Brooks, plaintiff's intestate, brakeman. The train reached Epes about 4 o'clock p. m. the same day. Epes is an incorporated town, and had an ordinance then in force prohibiting the running of trains at a greater rate of speed than six miles an hour. At Epes considerable switching was done and four or more freight cars were cut out of the train and placed upon what is known as the "passing track." After these cars were placed upon the passing track Brooks was ordered by the conductor, Park, to couple the air between them, and the engine and other cars pulled out of the passing track on to the main track and went a considerable distance before re-entering the passing track. The estimates of the witnesses differed as to the length of time that elapsed between the placing of the cars on the passing track and the collision. There were other conflicts in the evidence, as shown by the opinion. The opinion sufficiently shows the objections and exceptions to evidence, as well as charges refused to defendant. There was verdict for the plaintiff for $7,000. Defendant filed a motion for a new trial upon the ground that the verdict was contrary to and unsupported by the evidence. This motion was overruled, and defendant appeals.

Smith & Weatherly and John London, for appellant.

Lane & White, S. O. Harkness, and Walter K. Smith, for respondent.

HARALSON J.

The court gave the affirmative charge for defendant as to each of the counts except the first, second, third and sixth.

1. That the demurrers to these counts were properly overruled we need not discuss after our repeated decisions sustaining counts of a similar character. Mill Co. v. Parker (Ala.) 32 So. 700; Mining Co. v. Tolbert (Ala.) 31 So. 519; Railroad Co. v. Jones, 130 Ala. 456, 30 So. 586; Improvement Co. v. Campbell, 121 Ala. 50, 25 So. 793, 77 Am. St. Rep. 17; Railway Co. v. Arnold, 114 Ala. 183, 21 So. 954; and the other cases referred to in these decisions.

2. The...