Alabama Midland Ry. Co. v. McDonald

• Decision Date: 12 June 1896
• Citation: 112 Ala. 216,20 So. 472
• Parties: ALABAMA MIDLAND RY. CO. v. MCDONALD.
• Court: Alabama Supreme Court

20 So. 472

112 Ala. 216

ALABAMA MIDLAND RY. CO. v. MCDONALD.

Supreme Court of Alabama

June 12, 1896

Appeal from circuit court, Dale county; J. M. Carmichael, Judge.

Action by John F. McDonald, administrator, against the Alabama Midland Railway Company. There was a judgment for plaintiff and defendant appeals. Reversed.

This was an action brought by the appellee, John F. McDonald, as the administrator of the estate of Jesse I. McDonald deceased, against the Alabama Midland Railway Company, to recover damages for the alleged negligent killing of the plaintiff's intestate. The first count of the amended complaint was as follows: "The plaintiff claims of the defendant the sum of one hundred thousand dollars ($100,000) damages, for that, whereas, heretofore, to wit, on the 14th day of October, 1891, the plaintiff's son, Jesse I McDonald, received injuries by reason of the wrongful act or omission or negligence of the defendant, through its servant and employé Hayden, the engineer in charge of defendant's train of cars, near Newton in Dale county, Ala., which said injuries caused the death of the said Jesse I. McDonald. The plaintiff avers that his said son was, at the time of the injuries complained of, in the employment of the defendant and serving at the time of said injuries in the capacity of brakeman on its freight train; that at or about the depot in Newton, in said county, at the time alleged, he was then and there ordered by the defendant's conductor in charge of said train to make the second coupling in what is known as a 'double coupling,' and that the conductor on said train was to make the first coupling in said double coupling. One car was standing alone, a few feet further two cars were standing coupled together, and further still were some loose cars being pushed back by the engine, which was the engine controlled by said Hayden, and which was the one at the time being used to propel the said freight train to do the switching. The conductor stationed himself at the ends of the said two cars, towards the engine and train, and ordered the plaintiff's said son to station himself at the other end of said two cars, and between them and the said one car, and to make the coupling then, when said train and two cars should come back against said first car, and in the meantime it was understood that the conductor would make the first coupling. The plaintiff avers that the engineer, Hayden pushed his engine back against a lot of loose cars, without having his engine at the time coupled to the same, or, if they were coupled, the said engine cut loose from the same before they reached the first-named two cars, when the first coupling was to be made; that said engineer, Hayden, reversed said engine, contrary to the rules of said defendant, and pushed with force against said cars, just before cutting loose said engine, and left them going, on a down grade, without the protection of the engine to hold the cars when they should strike, which it did with such force as, without this protection to the conductor, to cause him to fail and refuse to make the first coupling; that said negligence of said engineer in cutting loose his engine at the time alleged, knowing that no brakeman was on the train to stop it, and that the said engineer, Hayden, knew it, or by the exercise of a proper observation, which it was his duty to do under the circumstances, he would have known it, and known that the deceased, McDonald, was between the cars to be coupled for the purpose of making the coupling, which was the business in which the engineer and brakemen were at the time engaged, as well as the deceased, and which caused the death of said Jesse I. McDonald; that the plaintiff's intestate, in obedience to the orders of said conductor, whom, under the rules of said defendant, he was bound to obey, was already between said cars, or so near thereto that he could not perceive this last-named danger of the cars coming back without being attached to the engine, and having a right at the time to believe that the first coupling would be made, obeyed his instructions, and made the second coupling as ordered; that when the cars struck, having nothing to hold them, they passed over his body, and he was crushed by the wheels; that this negligence was the cause of his death. Wherefore he sues." The averments of the fourth count of the complaint are sufficiently stated in the opinion. To the first count of the complaint the defendant demurred upon the following grounds: "(1) It is alleged that the said Jesse I. McDonald was a minor, but does not aver that the employment of said minor was without the consent of plaintiff, who was his father. (2) "It is not alleged that, at the time the engine was pushed with force against said cars, the engineer knew that deceased was between the cars, or near thereto. (3) It is not averred that the engineer, at the time of the alleged injury, knew the situation or location of deceased, or where he was standing. (4) It is averred in said amended count that the injury was caused by the negligence of engineer in backing his engine, and also the conductor in failing to make the first coupling. (5) Said complaint alleges contributory negligence of the said Jesse in being between the cars, or so near thereto that he could not foresee this last-named danger of the cars coming back without being attached to the engine, and does not allege any fact from which it was to be inferred that he had a right at the time to believe that the first coupling would be made. (6) It is nowhere alleged that the engineer was guilty of any negligence, or in what respect he was guilty of any negligence. (7) The averment that the engineer, in cutting loose his engine at the time alleged, knowing that no brakeman was on the train to stop it, does not allege negligence, nor is it the allegation of a fact from which it can be inferred that the engineer knew the situation of the deceased at the time of the alleged acts upon which negligence is based." This demurrer was overruled. The pleas and replications are sufficiently stated in the opinion.

Upon the trial of the cause, as is shown by the bill of exceptions, the plaintiff's evidence tended to show that at the time of the accident which resulted in the intestate's death, he was in the employment of the defendant as a brakeman upon one of its freight trains; that, while switching cars at one of the stations along its road, it became necessary to make what is known as a "double coupling"; that the conductor of the freight train directed the plaintiff's intestate to make the second coupling, and told him that he (the conductor) would make the first coupling; that, upon the engine, with several cars attached, backing in upon the track where the couplings were to be made, the cars were moving so rapidly that the first coupling was not made; and that, as the plaintiff's intestate attempted to go between the cars to make the second coupling, while they were in motion, he...