Bradley v. Deaton

• Decision Date: 14 December 1922
• Docket Number: 6 Div. 460.
• Citation: 208 Ala. 582,94 So. 767
• Parties: BRADLEY v. DEATON.
• Court: Alabama Supreme Court

94 So. 767

208 Ala. 582

BRADLEY v. DEATON.

6 Div. 460.

Supreme Court of Alabama

December 14, 1922

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages by Hattie Lee Deaton, as administratrix, against Lee C. Bradley, as receiver of the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Tillman Bradley & Baldwin, John S. Stone, and John S. Coleman, all of Birmingham, for appellant.

Black Altman & Harris, of Birmingham, for appellee.

McCLELLAN J.

The action is for damages for the death of plaintiff's (appellee's) intestate Deaton, who, at the time of his injury, was a motorman in the service of appellant on one of its street railway lines. The case was submitted to the jury on the averments of count 2. This count was drawn to state a cause of action under subdivision 5, Code, § 3910, of our Employers' Liability Act. The count is a copy of the count (5) expressly approved in B. R. L. & P. Co. v Mosely, 164 Ala. 111, 119, 120, 51 So. 424. Consequent upon the earnest insistence for appellant that the count is defective, particularly in the respect that the subject of the control superintendency referred to in the count (2) is not sufficiently described or defined, the court en banc has reconsidered the count, and concludes that the sufficiency of the count was well affirmed in the Mosely Case, and hence, in the present instance, consistent with the satisfactory authority of A. G. S. R. R. Co. v. Davis, 119 Ala. 572, 24 So. 862. Other decisions, the court holds, treating the sufficiency of counts under the second, "superintendents," subdivision of Code, § 3910, do not invite a different conclusion; for that under the second subdivision a superintendency may extend over a wider subject of control than that subdivision 5 contemplates, and hence a defendant may be sufficiently advised, to conform to good pleading, by a less specific description of the subject of the "charge or control" in an action under subdivision 5 than is requisite in an action under subdivision 2. Furthermore, the court is of the opinion that the reason stated for the view taken in the Mosely Case, viz. that the fact that the employee was killed introduced a discriminating factor, was ill advised and untenable. To that extent only, in the presently pertinent phase of the Mosely Case, that pronouncement is modified. The demurrer to count 2 was overruled without error. This count (2) attributed intestate's death to "the negligence of the conductor, whose name is unknown to plaintiff, in the service and employment of defendant, and who then and there had charge or control of the car upon the track of the defendant's said railway, with which the car upon which plaintiff's intestate was collided." It appears from the count as well as from the evidence that the car described was a trailer, attached to another car ahead of it called the motor car; and that one Andrews was the conductor of the "trailer." The bill of exceptions recites:

"Counsel for plaintiff then stated as follows: I will state to the court that I mean to amend the complaint later and charge: *** Use the word 'motorman' where I have conductor, *** the motorman in charge of the car, whoever it was."

The only negligence declared on is that ascribed to Andrews, the conductor of the trailer. The subsequent pleading was the general issue and contributory negligence on the part of Deaton because of his asserted violation of, first, a printed rule, and second, of his violation of special instructions, both relating to the operation of cars by motormen during periods when there was a fog. The evidence is undisputed that there was a heavy fog covering the section through which Deaton's car was moving before and at the time of his fatal injury.

The appeal's consideration must be according to its natural division, viz.: First, the negligence alleged in count 2, that of Conductor Andrews; and, second, the asserted contributory negligence of Deaton predicated of the violation of the printed rule or of special instructions to which reference has been already made. On the occasion of Deaton's injury, a motor car, to which the mentioned "trailer" was attached, had struck something, and was stationary on the track ahead of Deaton. A heavy fog hung over the neighborhood. Deaton's car collided with the "trailer," killing him. To Perry, division superintendent for defendant, was propounded this question:

"Was it on the 24th of December, 1919, the duty of a conductor working for the defendant, if his car was stopped on the track in a dense fog, to go back on the track and give any kind of warning to approaching cars?"

After untenable objections were overruled, the court inquired, "You mean the duty under the rules of the company?" to which counsel replied in the affirmative. After further untenable objection, the witness answered the thus formulated question: "It is the general rule." The effect of this testimony was to show a duty on Andrews, conductor of the "trailer," in the circumstances defined in the "general rule" of the company. The evidence otherwise discloses that Andrews did not at all attempt to meet the duty enjoined by the "general rule." Clem, the conductor on the motor car in front of the "trailer," did go back with the view to warning or signaling approaching cars; but, according to his testimony, his purpose and effort was interfered with by a vehicle on the highway a short distance from where his car had stopped that obstructed Clem's vision as Deaton's car passed Clem. This phase of Perry's evidence precluded appellant's right to the general affirmative charge on the theory that there was no evidence tending to show negligence on the part of Andrews.

It is, in effect, insisted for appellant that, since count 2 charged Andrews with negligence in his "charge or control" of the car (the trailer) and not with negligence in respect of "charge or control" of a "signal" (Code, § 3910, subd. 5), the evidence of failure or fault in giving warning signal did not tend to support even the very general averment of Andrews' negligence in count 2. The "general rule" to the existence of which Perry testified may have been violated by a conductor who made no attempt to observe that rule's direction; who did not, in any way or degree, undertake the observance of the rule's command or the assumption of charge or control over the means whereby the rule's duty might be performed. The object of the rule stated by Perry was to prevent injury to persons and property. The duty it defined was laid on conductors, under the circumstances the rule prescribes; and a failure to observe the duty thereby enjoined, through complete omission to assume the discharge of the duty, would be negligence in a conductor in "charge or control" of the stationary car the rule designed to protect from collision to the rear. Though entirely sound, the decisions cited in appellant's brief in this connection do not invite or require a different conclusion.

The court did, however, err in refusing the following request for instruction:

"If you believe the evidence in this case, you cannot find a verdict for plaintiff on account of any act or failure to act or conduct on the part of the witness Clem."

As stated, the sole negligence charged in count 2 was that of Andrews, conductor of the trailer. Clem, conductor of the motor car, was not within the averments of the count. Perry's testimony with reference to the "general rule" made Clem as well as Andrews subject to that general rule's command; whereas, only Andrews' conduct or omission was declared on in count 2. In these circumstances the defendant was due instruction, such as that quoted, to confine the jury's consideration to the negligence charged and to exclude from the jury's consideration possible negligence on the part of a servant whose fault, if so, was not declared on.

The court also erred in refusing to defendant this request for instruction:

"If you believe the evidence in this case, you cannot find a verdict in favor of plaintiff on account of an act or failure to act on the part of the witness Rushing."

Rushing was the motorman operating the front car. The bill of exceptions recites that plaintiff introduced defendant's printed rule 7. This rule reads:

" Responsibility-The motorman is in charge of the car and is held responsible-

"For running the car according to schedule. For signal, lights on rear end of train for protection on rear end of train when stopped on main line, by going back not less than five poles with red signal to stop any car following."

In view of this evidence, the defendant was entitled to have the jury's consideration confined to the negligence alleged against Andrews only and to exclude recourse to any fault or wrong that might be attributed to Rushing.

There are also statements in the oral charge of the court indicating that proper account was not taken of the fact that to only one employee, Andrews, was negligence ascribed in count 2. Indeed, in one place the court stated that the count charged the conductor of the "front car" with negligence: which was a mistake if the reference was to the "front car" ahead of the "trailer" with which Deaton's car collided.

Notwithstanding seasonable objections, the witnesses Easterwood and Hargrove were allowed to testify with reference to their observance or their...