Atlantic Coast Line R. Co. v. Jones

• Decision Date: 11 November 1913
• Citation: 63 So. 693,9 Ala.App. 499
• Parties: ATLANTIC COAST LINE R. CO. v. JONES.
• Court: Alabama Court of Appeals

63 So. 693

9 Ala.App. 499

ATLANTIC COAST LINE R. CO. v. JONES.

Court of Appeals of Alabama

November 11, 1913

Rehearing Denied Dec. 9, 1913

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Action by Will Jones against the Atlantic Coast Line Railway, for injuries while in its employment. Judgment for plaintiff, and defendant appeals. Affirmed.

Count 2, after alleging the business in which defendant was engaged and the relation existing between plaintiff and defendant and that while engaged in the discharge of his duties in the business of defendant, he suffered certain injuries which are alleged, avers that plaintiff was caused to be thrown from an engine as aforesaid by reason of and as a proximate consequence of a defect in the ways, works, machinery, or plant connected with or used in the business of defendant, in this: That the engine on which he was riding was defective which said defect arose from, or had not been discovered or remedied owing to, the negligence of defendant, or of some person in the service or employ of defendant, and intrusted by defendant with the duty of seeing that its ways, works machinery, or plant were in proper condition.

Count 3 1/2, after alleging the same matters as alleged in count 2 alleges that he was thrown from a fast-moving locomotive on which he was riding, and which he was watching in conformity to the orders and direction of the conductor, who was then and there in the employment and service of defendant, and while acting within the scope of his employment, and to whose orders and directions plaintiff was bound to conform, and did conform. "Plaintiff avers that his said injuries arose from the negligence of said conductor, whose name is unknown to plaintiff, in negligently ordering and directing him to ride on and watch said engine as aforesaid, knowing said engine was defective, and that in complying with said orders so negligently given, plaintiff was injured as aforesaid; and plaintiff says that the said injuries resulted to him from and as a proximate consequence of the negligent order of said conductor, who was then and there in the employment of defendant, and to whose orders plaintiff was bound to conform, and did conform, and while so conforming."

Count 7: "Plaintiff claims of defendant the sum of $1,999 as damages, for that plaintiff avers that on, to wit, the 7th day of November, 1911, defendant, the Atlantic Coast Line Railroad Company, is a corporation duly organized under the laws of the state of Alabama, Georgia, and other states, and is a citizen of said state, and is engaged in commerce between the several states, to wit, Alabama and Georgia, and on such date and day, and as such corporation, was engaged in the business of operating a railroad, and running trains of cars and engines thereon, from the state of Georgia to the state of Alabama, and into the county of Montgomery in said state of Alabama, and that on said day and date in said states, plaintiff was a servant or employé of defendant, and engaged in such interstate commerce, and while in such service or business of defendant, and on a train composed of an engine and cars engaged in such interstate commerce, and while in the discharge of his duties as such, and while within the county of Montgomery in the state of Alabama, he was negligently thrown from a fast-moving engine to the ground, and on which engine he was in the discharge of his duties as such employé, and was thereby bruised [[[here follows catalogue of injuries], and plaintiff avers that he was negligently thrown, or caused to be thrown, from said engine as aforesaid by reason of and as a proximate consequence of the negligence of such carrier by reason of a defect and insufficiency, due to its negligence, in its engine, in that said engine on which plaintiff was riding was defective--for all of which plaintiff claims damages under and by force of the act of Congress approved April 22, 1908, and under an act to amend an act entitled an act relating to liability of common carriers by railroads to their employés, in certain cases, approved April 22, 1908, and which said amendatory act was approved April 5, 1910 (Act April 5, 1910, c. 143, 36 Stat. 291 [[[U.S.Comp.St.Supp. 1911, p. 1324]), and both of which acts of Congress were relative to liability on common carriers by railroads engaged in commerce between the states."

John R. Tyson and A.H. Arrington, both of Montgomery, for appellant.

William H. and J.R. Thomas, of Montgomery, for appellee.

PELHAM J.

The appellant prosecuting this appeal was the defendant in the court below. The only counts in the plaintiff's complaint not eliminated in the process of pleading, or by charges of the court, are counts 2, 3 1/2, and 7, and it will not be necessary to consider rulings on other counts shown by the record. Counts 2 and 3 1/2 are drawn under and base a right of action on the state Employers' Liability Act. Code, § 3910. Count 7 is drafted by the pleader to seek a recovery under the act of Congress known as the federal Employers' Liability Act.

The point made, and so strenuously insisted upon by the appellee's counsel, that this appeal is only from the judgment of the court below overruling defendant's motion for a new trial, and not from the original judgment rendered against the defendant on the trial of the case, and that the rulings of the court on the original trial are not before us for review, is untenable. The transcript contains properly worded appeal bonds, approved by the proper officer of the trial court, from the original judgment, and from the judgment on the motion for a new trial, and we will consider the assignments of error based on the rulings of the court in the original trial, as well as the assignments on the ruling refusing to grant the motion for a new trial.

There is nothing in the demurrer attacking the second count as bad because containing alternative averments stating no cause of action. The plaintiff in this count alleges but one breach resulting in injury, and no conjunctive or disjunctive causes of action. There was but one specification of negligence as such made; that was the defective engine, and the defendant was clearly informed of the matter to be put in issue under the allegations of this count. Birmingham R.L. & P. Co. v. Hunnicutt, 3 Ala.App. 448, 57 So. 262. The gravamen of the count is the averment of but one cause of action, grounded on the negligence of the defendant by reason of a defect existing in its ways, works, machinery, or plant producing the injury. The averment in this count, particularizing what part of the ways, works, machinery, or plant was defective by naming the defective instrumentality--that is, averring that the engine on which the plaintiff was riding was defective, without designating the particular part of the engine--is sufficient. Mary Lee Coal Co. v. Chambliss, 97 Ala. 172, 11 So. 897; Sloss-Sheffield Steel & Iron Co. v. Hutchinson, 144 Ala. 221, 40 So. 114; West Pratt Coal Co. v. Andrews, 150 Ala. 368, 43 So. 348.

Count 3 1/2 is drawn under subdivision 3 of section 3910 of the Code, and contains, as we read it, a sufficient averment that the conductor had supervision or control of the engine in the train of cars on which the plaintiff was riding, for the purpose of "watching it," under the directions and orders of the said conductor. The injury is clearly ascribed to the negligent giving of an order "to ride on and watch the engine," averred as known at the time to be defective to the conductor who gave the order to the plaintiff, a person in the employment of the common master, to whose orders or directions the plaintiff was bound to and did conform. Under the generality of averments of negligence allowed in complaints under the established rule in this state, the allegation in this particular in the count under discussion was all that is required. K.C., M. & B.R.R. Co. v. Flippo, 138 Ala. 487, 35 So. 457; Republic I. & S. Co. v. Williams, 168 Ala. 612, 53 So. 76; Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 192, 40 So. 280.

Count 7 is also attacked because of the generality of its averments, but objections because of the generality of averments of negligence in a complaint, amounting to little, if any, more than the conclusions of the pleader, are untenable under the rulings of the Supreme Court running back as far as Leach et al. v. Bush et al., 57 Ala. 145. The defect in the engine is alleged as having been due to the negligence of the defendant, and it was therefore unnecessary to aver that the defect had not been discovered or remedied owing to the negligence of the defendant, as contended by appellant. The allegation that the defect was due to the negligence of the defendant was equivalent, in legal effect, to saying that the defendant had knowledge of the defect, or failed to use due care to acquire knowledge of it. The allegation in this count that the plaintiff was negligently thrown, or caused to be thrown, from the engine as a proximate consequence of the negligence of the defendant by reason of a defect in the said engine, which defect was due to defendant's negligence, is a sufficient averment in this particular.

No exception is shown to have been reserved to the ruling of the court on defendant's motion to strike count 7, drafted under the federal act, as improperly joined with counts 2 and 3 1/2, seeking a recovery under the Employers' Liability Act of this state, as is necessary to properly present the question. Gaston v. Marengo Imp. Co., 139 Ala. 465, 36 So. 738.

It may be permissible to say, however that the court was not in error in its ruling on this motion. The systems of jurisprudence of the state and of the United States together form one system which constitutes...