Alabama Great Southern R. Co. v. Brock

• Decision Date: 15 April 1909
• Citation: 161 Ala. 351,49 So. 453
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. BROCK.
• Court: Alabama Supreme Court

49 So. 453

161 Ala. 351

ALABAMA GREAT SOUTHERN R. CO. v. BROCK.

Supreme Court of Alabama

April 15, 1909

Rehearing Denied May 11, 1909.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by S. M. Brock against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

The first count in the complaint is in the following language "Plaintiff claims of the defendant, the Alabama Great Southern Railroad Company, a private corporation, the sum of $10,000 damages, in this: That on and prior to the 3d day of August, 1907, the defendant operated a railway between Bessemer and Birmingham, Ala. That on, to wit, the date aforesaid, plaintiff was in the employment of defendant, and while engaged in the discharge of his duties under his employment a locomotive engine or train on defendant's railroad track collided with a train on which he was, at or near West End, on the line of said railway, greatly bruising and injuring plaintiff's back and hips. [Here follows a list of his injuries and an allegation that he was permanently injured and disabled.] Plaintiff avers that his said injuries were proximately caused by the negligence of the engineer, whose name is unknown to the plaintiff, who was also in the employment of defendant, and who had charge and control of the locomotive engine on the railroad track of defendant which collided with the car on which plaintiff was in the negligent manner in which he ran or operated the same."

The oral charge of the court, excepted to, was in the following language: "I charge you, gentlemen of the jury, that it is not necessary in a case like this for the plaintiff to have been actually engaged in manual work for the defendant at the time of the injury, and if you find from the evidence that he was employed by the defendant, and that he had been engaged in the work of defendant on the wrecking car at Bessemer, and was returning from Bessemer to Birmingham, and while so returning from his work was riding in the car in order to get back to Birmingham, and was injured while so riding, I charge you that he would be, in contemplation of law, engaged at the time of the injury in the work of the defendant for which he was employed, and within the line and scope of his employment."

Defendant also requested the affirmative charge as to count 1, which was refused.

A. D. &amp E. D. Smith, for appellant.

Frank S. White & Sons, for appellee.

SIMPSON J.

This action by the appellee is for damages on account of injuries claimed to have been received by the plaintiff as an employé of the defendant. All of the counts of the complaint were eliminated by demurrer, except the first; and the first assignment of error insisted on is to the action of the court in overruling demurrers to said count.

The gravamen of the demurrer insisted on in argument is that it does not sufficiently set out the facts showing in what consisted the negligence complained of. While it is true that, under our decisions, greater particularity is required in the allegations of contributory negligence by the defendant than is required of the plaintiff in alleging negligence, yet it has been established by the decisions of this court that complaints alleging negligence in the general terms used in this count are sufficient, and the court is not disposed to overrule them. L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L. R. A. 620; Postal Tel. Co. v. Jones, 133 Ala. 226, 32 So. 500; L. & N. R. R. Co. v. Jones, 83 Ala. 376, 3 So. 902; McNamara et al. v. Logan, 100 Ala. 187, 14 So. 175; B. R., L. & P. Co. v. Moore (Ala.) 43 So. 482; Ga. Pac. Ry. Co. v. Davis, 92 Ala. 307, 9 So. 252 25 Am. St. Rep. 47; Mary Lee Coal & R. Co. v. Chambliss, 97 Ala. 174, 11 So. 897; H. A. & B. R. R. Co. v. Miller, 120 Ala. 535, 544, 24 So. 955.

The complaint follows the language of the statute, and is not subject to the other ground of demurrer insisted on, to wit that it does not allege that the engineer was acting within the line and scope of his employment. Woodward Iron Co. v. Herndon, Adm'r, 114 Ala. 191, 214, 21 So. 430; Lampkin v. L. & N. R. R. Co., 106 Ala. 287, 291, 17 So. 448. It is true that the margin is very close between these cases and that of Daniels v. Carney, 148 Ala. 81, 42 So. 452, 7 L. R. A. (N. S.) 920, 121 Am. St. Rep. 34; and the remarks of counsel for appellant are not without force. The count in the last-mentioned case is not set out in full, so that we cannot say exactly what its averments were; but the distinction seems to be based on the principle that subdivision 5 of section 3910 of the Code of 1907 is so worded as to justify the inference that the Legislature considered that "a person in the service or employment of the master, who has the charge or control of an engine," is presumed to be acting within the scope and line of his employment. In the case of A. G. S. R. v. Williams, 140 Ala. 230, 236, 37 So. 255, 258, the count did not follow the language of the statute, but left it "to be inferred that B. J. was an engineer having control of said engine." The remark of the court, in A. G. S. R. Co. v. Sanders, 145 Ala. 449, 458, 40...