Birmingham Ry. & Electric Co. v. Baylor

• Decision Date: 27 July 1893
• Citation: 101 Ala. 488,13 So. 793
• Parties: BIRMINGHAM RAILWAY & ELECTRIC CO. v. BAYLOR.
• Court: Alabama Supreme Court

13 So. 793

101 Ala. 488

BIRMINGHAM RAILWAY & ELECTRIC CO. v. BAYLOR.

Supreme Court of Alabama

July 27, 1893

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by James H. Baylor against the Birmingham Railway & Electric Company for personal injuries. From a judgment for plaintiff defendant appeals. Reversed.

On the examination of J. J. Kennedy, as a witness for the plaintiff he testified that he was a locomotive engineer, and had been about 14 years; that the plaintiff was injured while running as fireman on the same dummy on which he was engineer. After testifying as to the accident which resulted in the injury to the plaintiff, he testified that he examined the switch after the wreck, and it was at that time open to the side track and was all right except for the absence of a switch lock but that there was no one at the switch to undertake to signal that there was danger from the switch being open. The plaintiff then asked the witness the following question: "I will ask you if you know what the custom is of well-regulated railroads as to the manner of securing switches." The defendant objected to this question, on the ground that the witness was not shown to know the custom upon the kind of railroad or dummy line that was operated by the defendant, upon which plaintiff was injured. The court overruled the defendant's objection, and defendant duly excepted. The witness stated that he knew what the custom was upon well-regulated railroads, and that the custom was to have locks on the switches. The defendant also moved to exclude this answer on the same grounds, and duly excepted to the court's overruling his motion. On the examination of L. M. McLemore as a witness for the plaintiff, he testified that he had been in the employ of the defendant, and knew the location of the switch at which the accident occurred; that he did not know whether there was a lock of said switch when he was running on the train of the defendant; that he did not see any; and that, two months before the plaintiff was injured, he ran into the same switch. The defendant moved to exclude that portion of this witness' testimony in which he testified that two months before the accident he ran into the switch at the place of the accident; but the court overruled the defendant's motion, to which ruling the defendant duly excepted. The defendant introduced as a witness one M. M. Dill, who testified that he was an engineer on the defendant's road, and that on the night of the accident he passed on the side track, at the switch where the accident occurred, for the purpose of letting the engine on which the plaintiff was fireman pass by, going on to Bessemer, which was about 30 or 40 minutes before the accident occurred; that, after his train had passed on, he moved out of the side track onto the main line, and went on to Birmingham. The defendant then asked the witness the following question: "Tell the jury the condition of the switch after you moved out,-whether it was safe or not." Plaintiff objected to this question, in that it called for a conclusion of the witness, which objection the court sustained, and the defendant duly excepted. The defendant then asked the witness to "state whether it would be reasonably safe for a train to pass over the switch left as you left it that night." The court sustained the plaintiff's objection to this question, and the defendant duly excepted. The defendant requested the court to give, among others, the following written charges, and separately excepted to the court's refusal to give each of them as asked: (4) "I charge you that the law does not require the defendant to use the latest improvements or inventions in the operation of its road, but that the law is satisfied if the switch is reasonably safe for its employes; and I charge you that, if you believe from the evidence that on the morning of the accident the defendant's switch was reasonably safe if properly used, that you must find for the defendant." (5) "If you believe from the evidence that on the morning of the accident the section boss left the switch locked in the condition testified to by witness Aldrich, and that he did not have occasion to, and that his duties did not require him to, examine the switch afterwards during the day, and that he did not know but that the switch was locked at the time of the accident, then you must find for the defendant upon the first and second and third counts of the complaint." (16) "I charge you that, under the evidence in this case, you must find in favor of the defendant."

R. H. Pearson and John F. Martin, for appellant.

Lane & White, for appellee.

COLEMAN J.

The plaintiff, Baylor, a minor, sues by his next friend, under the employers' liability act, (section 2590 of the Code,) to recover damages for injuries sustained while in the employment of defendant as fireman. As the case must be reversed for causes hereafter considered, we deem it proper to consider the sufficiency of the complaint, lest our failure to do so be construed as an admission that the complaint is free from error. It is proper to add in justice to the trial court that the defendant did not demur to the complaint, and trial was had upon the general issue. It is necessary to clearly understand and keep constantly in view the several causes of action as laid in each count, to test the correctness of the rulings of the court upon questions of evidence and instruction to the jury. We have heretofore declared many of the principles embodied in the employers' act, and defined rules of pleading to be observed in framing the complaint and pleas thereto. In the case of Railroad Co. v. Dusenberry, 94 Ala. 419, 10 South. Rep. 274, it was declared that "when the plaintiff, in a single count, shifts his right of action from one ground to another, and states several breaches of duty in the alternative or disjunctively, so that it is impossible to say upon which of several equally substantive averments he relies for the maintenance of his action, then there is such confusion and obscurity as to the ground upon which a recovery is claimed that the defendant is not clearly informed of the matter to be put in issue, and a count so substantially variant and contradictory is demurrable. *** Inextricable confusion of issues would result from the blending in one count of a number of distinct breaches of duty as independent grounds of recovery, to be chosen from and relied upon at the election of the plaintiff. Perspicuity and certainty in his pleadings are not exacted of the plaintiff if he is permitted to put forward in one count several independent causes of action, stated in such ambiguous terms as to leave the defendant wholly in doubt as to what alleged breach of duty is really made the grounds of the charge of liability." These rules were declared as applicable to to complaint then under consideration, an examination of which showed that several causes of action and distinct breaches of duty, arising under separate subdivisions of section 2590, were united and blended in one count, and in some instances averred in the alternative. The rule declared in the Dusenberry Case in regard to the pleadings was recognized in the case of Railroad v. Burton, (Ala.) 12 South. Rep. 90. In the case of Railroad Co. v. Mothershed, (Ala.) 12 South. Rep. 714, referring to the Dusenberry Case, supra, we said: "It was not held that where the several causes of action averred and relied on for recovery arose under the same subdivision of section 2590 of the Code, were stated separately, but not disjunctively, and each averment contained a substantive cause of action, such a count was demurrable. A count of this character fully informs the defendant that each substantive averment is relied upon, and he may prepare his defense accordingly. Proof of either will authorize a recovery. The distinction must be kept in mind where a single count contains several distinct, independent averments, each presenting a substantive cause of action, and a count containing several averments, all of which combining together make up the one cause of action averred. As to the former, proof of either will authorize a recovery, whereas in the latter it is necessary to prove each of the averments in order to sustain the cause of action as laid." Mere redundancy will not vitiate a complaint. The redundant portion may be stricken out, or rejected as surplusage. Let us apply these principles to the several counts of the complaint, and also examine the ruling of the court upon the several instructions refused with reference to the evidence as applicable to the several counts. The negligence charged in the first count is "of persons in the employment of the defendant, who had charge of the switch, *** in leaving said switch open," etc. The cause of action here averred is that given by subdivision 5 of section 2590. The question arises as to who was in charge of the switch, and what is meant by "charge or control of a switch."

The defendant introduced evidence as follows: "Mr. Aldrich had charge of looking after the switches and keeping them in order. He was the section boss or road master. Aldrich was the man that looked after the switches. The sections were seven or eight...