Birmingham Ry. & Electric Co. v. Allen

• Decision Date: 22 November 1892
• Citation: 99 Ala. 359,13 So. 8
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RAILWAY & ELECTRIC CO. v. ALLEN.

13 So. 8

99 Ala. 359

BIRMINGHAM RAILWAY & ELECTRIC CO. v. ALLEN.

Supreme Court of Alabama

November 22, 1892

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

Action by W. L. Allen against the Birmingham Railway & Electric Company to recover damages for personal injuries caused by defendant's negligence. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Reversed. Application for rehearing denied.

The complaint, as originally filed, contained but one count which was in the following language: "The plaintiff claims of the defendant fifteen thousand dollars, for that heretofore, on, to wit, 1st day of July, 1891, defendant was operating, running, managing, and controlling a certain railway known as the East Lake Dummy Line, running from Birmingham, in an easterly direction, to and by Fritchman's Garden, to East Lake, Ala.; that on said day plaintiff was in the service or employment of defendant in the capacity of conductor on a certain train, composed of a steam locomotive engine and certain cars, which was then and there being run over and along said railway by defendant that when said train reached a point on said railway at or near said Fritchman's Garden it run from the main line onto a switch or siding, and plaintiff, by reason thereof was thrown from one of said cars, on which car plaintiff then and there was in the performance of his duty as conductor as aforesaid, and plaintiff's leg was fractured, his hip shoulder, and head, and various other parts of his body bruised and lacerated, and plaintiff was otherwise seriously and permanently injured. By reason of his said injuries, plaintiff suffered, and continues to suffer, great mental and physical pain, and loss of time, and plaintiff was rendered less able to work and to earn money, and was put to great expense for medicine, medical attention, care, and nursing, and plaintiff avers that his said injuries are permanent. Plaintiff avers that defendant negligently caused or allowed the track of said railway at or near said switch, or said switch, to be in a defective condition, and the said accident, and plaintiff's said injuries, resulted therefrom. Plaintiff further avers that said accident, and plaintiff's said injuries, were caused by reason of defects in the condition of the ways, works, machinery, or plant connected with or used in said business of defendant, viz.: Said switch was in a defective condition. Said track at or near said switch was in a defective condition. Said switch was negligently allowed to be open. Said switch was allowed to be and remain without a lock, or other proper and sufficient means for fastening the same. Said switch was negligently allowed to be and remain without a light, or other proper and sufficient means by which it could be told by the engineer or fireman on said train which way said switch was set. The said defects arose from, or had not been discovered or remedied owing to, the negligence of defendant, or of some person in the service of defendant, and intrusted by it with the duty of seeing that said ways, works, machinery, or plant were in proper condition. Plaintiff further avers that said accident and his said injuries were caused by reason of the negligence of a person in the service or employment of defendant, who had the charge or control of said switch, viz. said person negligently caused or allowed said switch to be then and there open. Plaintiff further avers that said accident and his said injuries were caused by reason of the negligence of a person in the service or employment of defendant, who then and there had the charge or control of said engine, viz. said person negligently caused or allowed said engine pulling said train to run upon or through said switch. All to plaintiff's damage fifteen thousand dollars. Hence this suit."

The defendant filed several demurrers to this count of the complaint, which were confessed by the plaintiff. Thereupon the plaintiff amended the original complaint as follows: "Comes the plaintiff in the above-styled cause, and, by leave of the court first had and obtained, amends his complaint by adding thereto the following additional counts: Second count. Plaintiff refers to and adopts as a part of this second count all that part of the first count, from the beginning thereof down to and including the words, 'that his said injuries are permanent,' where they first occur in said count; and plaintiff further avers that said accident, and plaintiff's said injuries, were caused by reason of defects in the condition of the ways, works, machinery, or plant connected with or used in said business of defendant, viz. the switch from the main line into the siding into which said train ran as aforesaid was in a defective condition. The said defects arose from, or had not been discovered or remedied owing to, the negligence of defendant or of some person in the service of defendant, and intrusted by it with the duty of seeing that said ways, works, machinery, or plant were in proper condition. Third count. Plaintiff refers to and adopts as a part of this third count all of the second count of this complaint, except the following sentence thereof: 'The switch from the main line into the siding onto which said train ran as aforesaid was in a defective condition.' And plaintiff inserts as a part of this third count, in lieu of said sentence, and in the corresponding position of said sentence, the following words, viz.: 'The switch from the main line into the siding onto which said train ran as aforesaid was negligently allowed to be and remain without a lock, or other proper and sufficient means of fastening the same, and the same was not kept sufficiently locked or fastened.' Fourth count. Plaintiff refers to and adopts as a part of this the fourth count of his complaint all of the second count of this complaint, except the following sentence thereof, viz.: 'The switch from the main line into the siding onto which said train ran as aforesaid was in a defective condition;' and plaintiff inserts as a part of this fourth count, in lieu of said sentence, and in the corresponding position of said sentence, the following words, viz.: 'The switch from the main line into the siding onto which said train ran as aforesaid was negligently allowed to be open.' Fifth count. Plaintiff refers to and adopts as a part of this, the fifth count of his complaint, all of the second count of his complaint except the following sentence thereof, viz.: 'The switch from the main line into the siding onto which said train ran as aforesaid was in a defective condition;' and plaintiff inserts as a part of this fifth count, in lieu of said sentence, and in the corresponding position of said sentence, the following words, viz.: 'The switch from the main line into the siding onto which said train ran as aforesaid was negligently allowed to be and remain without a light, target, or other proper and sufficient means by which it could be told by the engineer or fireman on said train which way said switch was set.' Sixth. Plaintiff refers to and adopts as a part of this, the sixth count of his complaint, all that part of the first count of the complaint, from the beginning thereof down to and including the words, 'That his said injuries are permanent;' and plaintiff further avers that said accident, and his said injuries, were caused by reason of the negligence of a person in the service or employment of defendant, who had the charge or control of said switch and siding, and of the switch leading from the main line into said siding, viz. said person negligently caused or allowed same to be so set that said train ran into said siding as aforesaid."

Defendant demurred to the second count of the complaint, and assigned the following grounds of demurrer thereto, viz.: "(1) There are no facts averred in said count of said complaint which show that plaintiff was in such relationship to defendant at the time of his injury that defendant owed him the duty to keep its switch in proper condition. (2) There are no facts averred in said count of said complaint which show in what the alleged defect consisted. (3) Said count is incomplete, indefinite, and uncertain." Defendant demurred to the third count of the complaint on the same grounds as to the second of the complaint, and, in addition thereto, the following: "(4) There is no averment of any facts which show with sufficient certainty that it was the duty of defendant to keep a lock on its switch, and to keep its switch locked. Defendant demurs to the fourth count of the complaint for the same reasons as to the second count thereof, and, in addition thereto, the following: (4) There is no averment of any facts which show that an open switch was a defect in the ways, works, machinery, or plant of defendant. (5) There is no averment of any facts which show that it was the duty of defendant to keep its switch closed." Defendant demurred to the fifth count of the complaint, and assigns the same causes of demurrer as are assigned to the second count, and, in addition thereto, the following, viz.: "(4) There are no facts averred which show with sufficient certainty that it was the duty of defendant to keep its switch lighted, or to have a target or other appliance by which the engineer and fireman could see how the switch was turned." Defendant demurred to the sixth count of the complaint, and assigns the same causes of demurrer as are assigned to the second count, and, in addition thereto, the following, viz.: "(4) It is not averred in said count of said complaint, with sufficient certainty, who the person was who, it is alleged, was in the service and employment of defendant, who had charge of said switch, and who negligently caused or allowed...