Alabama Steel & Wire Co. v. Griffin

• Citation: 149 Ala. 423,42 So. 1034
• Parties: ALABAMA STEEL & WIRE CO. v. GRIFFIN.
• Decision Date: 05 February 1907
• Court: Supreme Court of Alabama

42 So. 1034

149 Ala. 423

ALABAMA STEEL & WIRE CO. v. GRIFFIN.

Supreme Court of Alabama

February 5, 1907

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by J. H. Griffin, administrator of C. Cahill, deceased against the Alabama Steel & Wire Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This cause, as appears from the opinion, was tried upon counts 5 6, 9, and 11, which are as follows:

"(5) Plaintiff claims of the defendant the sum of twenty-five thousand dollars damages, for that heretofore, to wit, the 18th day of February, 1904, the defendant was engaged in operating a plant at or near Gadsden, Ala., for the manufacture of pig iron and other material; that on said date, while plaintiff's intestate was in the service or employment of the defendant, a car or cars of the defendant ran upon or against plaintiff's intestate, injuring him, so that he died. And plaintiff says that his intestate's death was caused as aforesaid by reason and as a proximate consequence of the negligence of one J. N Mitchell, a person in the service or employment of the defendant, and who had charge or control of a signal switch, or points upon a railway or part of the track of a railway of the defendant, in this, viz.: Plaintiff's intestate was, while in the discharge of his duty as such employé, engaged in loading some cars for the defendant, which had been placed or were standing upon a switch, spur track, or siding of the defendant's railway to be loaded with ore or other material for use at the blast furnace of the defendant; and plaintiff says it was the duty of the said J. N. Mitchell, when advised by plaintiff's intestate, or others assisting in loading the cars, that the cars were ready to be moved or set out, to so set the switch or points upon the railway to let the engine, locomotive, or cars in or upon the switch or siding that the loaded cars might be moved; and the plaintiff says that the said Mitchell negligently set or arranged the switch or points so as to let in the engine and cars, and when he had not been advised to do so; and plaintiff says, by reason of the negligence of said J. N. Mitchell as aforesaid an engine and cars of the defendant were run in or upon the said side track, switch, or spur with great speed, and upon or against the plaintiff's intestate as aforesaid. Hence this suit."

(6) Same as fifth down to and including the word "viz.," where it first occurs in said fifth count, continuing: "Plaintiff's intestate was, while in the employ of defendant and while in the discharge of his duty as such employé, engaged in loading some cars for the defendant which were standing upon a switch, spur track, or siding at the time of the loading; and plaintiff says it was the duty of the said J. N. Mitchell to so set the switch or points on the track as to let in the engine, locomotive, or cars of the defendant for the purpose of moving out the loaded cars when advised or signaled to do so, and when the cars were loaded and ready to be moved; and plaintiff says that at the time his intestate received the injuries as aforesaid the said J. N. Mitchell negligently set the switch or points on the track, and by reason of such negligence the engine and some cars of the defendant were run at great speed upon said switch, spur track, or siding, and when no signal had been given for the engine or cars to come in, and at a time when they were not expected by plaintiff's intestate, inflicting the injuries as aforesaid. Hence this suit."

"(9) Plaintiff claims of the defendant the sum of twenty-five thousand dollars as damages, for that heretofore, to wit, on the 18th day of February, 1904, the defendant was operating a plant at or near Gadsden, Ala., for the manufacture of pig iron and other materials; that on said day, and while plaintiff's intestate, the said Cahill, was in the service or employment of the defendant, and engaged in and about said business of the defendant at or near said plant, a car or cars ran upon or against said intestate, and so injured him that he died. And plaintiff avers that his intestate's death was caused in the manner aforesaid, by reason and as a proximate consequence of the negligence of a person in the service or employment of defendant who had charge or control of a locomotive engine upon a railway or part of the track of a railway of defendant, viz., defendant's engineer, Smith, of the locomotive engine, who caused said car or cars to move and run upon or against said intestate as aforesaid, negligently by means of said engine causing said cars or car to run against or upon said intestate as aforesaid."

(11) Same as count 9, down to and including the words "that he died," where they first occur in said count 9, and continuing: "And plaintiff avers said car or cars ran upon or against said intestate, and his death was caused as aforesaid, by reason and as a proximate consequence of the negligence of a person in the service or employment of the defendant who had charge or control of a switch, signal, or points upon a railway or part of the track of a railway of the defendant, viz.: One Walter Mitchell negligently changed said switch, signal, or points, so that by reason thereof certain cars operated by the defendant were run upon the wrong track, and struck a car standing upon said last-mentioned track, and as a proximate consequence thereof one or more of said cars ran upon or against said intestate, and caused his death as aforesaid."

Demurrers were interposed to these counts as follows: To the fifth count:

"Because it does not state a cause of action. It appears that the defendant is not liable for the alleged negligent act of Mitchell. It does not appear that Mitchell had superintendence intrusted to him by defendant. It does not give the name of the person in charge or control of the switch, signal points, etc. For that it does not appear that defendant was operating a railroad in the contemplation of the statute. It does appear that the signal, switch, points, etc., were not a part of such railroad as contemplated by the statute. It does not appear that the intestate was injured while aiding as a servant in the operating of such a railroad as contemplated by statute. For that it does not appear that intestate's duties required his presence on the railroad track. From aught that appears, intestate was wrongfully on the railroad track. For that it does not appear that said Mitchell knew that intestate was on the railroad track, or had any reason to believe he was on said track."

The same grounds are assigned to the sixth count of the complaint, and the same to the eleventh count of the complaint.

To the ninth count of the complaint, the same grounds as to the fifth count, with these additional grounds: "For that it does not appear that Smith had superintendence intrusted to him. For that it does not give the name of the person in charge or control of the engine or car. For that it is doubtful and uncertain under which subdivision or subsection of the statute said count is framed."

Objection was interposed to the introduction of the letters of administration, because issued upon the estate of C. L. Cahill, while the complaint charges that the intestate was C. Cahill. Objection was also interposed to testimony that the engine which ran back with the cars that injured intestate had no light on it, or on the cars it was pushing. The defendant sought to introduce evidence showing that intestate and Kirchner walked from Knoxville, Tenn., begged food, and slept in barns and under hayricks. This testimony was excluded on motion of plaintiff. It was shown that the intestate was working for one dollar per day at the time of his death. The plaintiff sought to show, and the court permitted it, that the plaintiff was a stone cutter, and when working at his trade earned from four to six dollars per day. The evidence tended to show that the intestate was in the employment of the defendant, loading or unloading some cars with ore, that the cars were on a siding or spur track used by defendant in the operation of his furnace and steel plant, and that it was near to a trestle or raised track, and that from the track of which was a part of this track several tracks branched off; that the rule was that an engine and cars coming back on either of these tracks were to give certain signals, or were to be signaled a certain way to come back on the tracks as a warning to those loading the cars to get out of the way. There was dispute as to whose duty it was to set the switch and to give the signals, and as to whether the switch was properly set. and there was testimony that the switch had been tampered with, or that some one not connected with defendant or in his employment had thrown the switch and left it set for the wrong track. There was dispute as to whether the defendant was guilty of contributory negligence in the way he was loading, and in the place he occupied on the cars while loading; there being, it was contended, a safe way and an unsafe way.

The following charges were requested by the defendant and refused by the court:

"(1) If the jury believe from the evidence in this case that C. Cahill was earning only $31.20 per month, of which amount he was spending $15 for board, $10 for clothing, and $5 per month for incidentals, you cannot find that he was contributing more than $1.20 per month out of his said earnings to the support of his mother.

"(2) In estimating the damages in this case, if you believe the evidence, you cannot compute the damages on a basis of what the deceased could have earned as a stone cutter or granite cutter, if you are reasonably satisfied from the evidence that for a long time prior to his death, and at the time of

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