Beyer v. Louisville & N.R. Co.

• Decision Date: 13 April 1897
• Citation: 114 Ala. 424,21 So. 952
• Parties: BEYER v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

21 So. 952

114 Ala. 424

BEYER v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

April 13, 1897

Appeal from circuit court, Cullman county; H. C. Speake, Judge.

Action by Frank Beyer against the Louisville & Nashville Railroad Company to recover damages for the death of his minor son Joseph Beyer, which was alleged to have been caused by the negligence of defendant's employés. From a judgment for defendant, plaintiff appeals. Affirmed.

Cofer &amp Brown, for appellant.

Thos G. Jones, for appellee.

HEAD J.

C. H Herrin was an employé of the appellee company, having charge of the operation of the pump at Phelan station, used for filling the tank there, from which the locomotives on the road were supplied with water. The company had in its employ a pump repairer, whose duty it was to make all repairs on the pumps which Herrin himself could not make, and he had a general pass to ride on all trains in the discharge of his duties. Herrin had no authority to employ special workmen to make such repairs, except at his own expense. The pump at Phelan becoming out of order, Herrin, without special authority, employed the plaintiff's minor son, Joe Beyer who was a mechanic residing at Cullman, on the line of defendant's road, about two miles from Phelan, to repair it. To reach Phelan for the purpose of doing the work, Beyer, in company with one George Shelton, who had formerly been a brakeman on defendant's road, boarded a freight train of defendant at Cullman. The train consisted of a locomotive and 22 cars, with caboose in the rear. It did not carry passengers, and did not ordinarily stop at Phelan. At Cullman it did not stop, but when these parties got aboard it had reduced its speed to that of about a man's walk. Beyer got on at about the fourth car from the locomotive, and took his position on top of that car (a box car), sitting on the edge, with his feet downward on the side. Shelton got on the fifth car, but did not remain there, but passed down, from one car to the other, until he reached and took his position on the caboose. After going a short distance (about one-fourth of a mile) the conductor (presumably in the caboose) asked Shelton where they were going. Shelton replied, "To Phelan, to fix the pump." The conductor responded, "Go tell the engineer," to which Shelton rejoined, "That is your business." Shelton further testified: "I told Bob [the conductor] where we were going, and he said he was going through there like hell scorching a feather." It does not appear that the parties boarded the train by authority of the conductor or any one else. The train ran about 15 miles (Beyer being still in his position on top of the box car), when, for some cause unknown and unexplained, except such explanation, if any, as may be inferred from what will presently be stated in reference to the manner one of the cars was loaded with pipe, it became derailed, causing its wreck, and by which Beyer was so injured that he died. The last five cars and the caboose remained on the tract, and no one on or in them was injured. Touching the cause of the derailment, the only evidence introduced proceeded from said Shelton, who was examined by the plaintiff, and who testified as follows: "One of the cars on the train was loaded with sewer pipes. They were about twenty-four inches by twelve feet long. They were loaded endways of car; held on by standards. One standard was out on left side of car, just ahead of the box car where Beyer was. This standard was gone before we got to Phelan. There were three brakemen on the train. We lost one of these sewer pipes between Cullman and Phelan. I said, 'Bob [meaning the conductor], you ought to stop this train and fix that car.' I told Bob the condition of the load on the flat car, and that he had better stop, and he said: 'Damn the sewer pipes! I am not going to stop this train.' I...