Broslin v. Kansas City, M. & B.R. Co.

• Decision Date: 04 February 1897
• Citation: 21 So. 475,114 Ala. 398
• Court: Alabama Supreme Court
• Parties: BROSLIN v. KANSAS CITY, M. & B. R. CO.

21 So. 475

114 Ala. 398

BROSLIN v. KANSAS CITY, M. & B. R. CO.

Supreme Court of Alabama

February 4, 1897

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by Thomas H. Broslin against the Kansas City, Memphis &amp Birmingham Railroad Company to recover for personal injuries. Demurrers to the complaint were sustained and judgment rendered for defendant, from which plaintiff appeals. Reversed.

This suit was brought by the appellant, Thomas H. Broslin, against the appellee, the Kansas City, Memphis & Birmingham Railroad Company, and sought to recover damages for personal injuries. The complaint, as originally filed, contained three counts but the complaint was afterwards amended by filing additional counts numbered 4, 5, 6, and 7. The first count of the complaint alleges that the defendant, the Kansas City Memphis & Birmingham Railroad Company, a body corporate, on June 14, 1894, operated a railroad from Birmingham, Jefferson county, to Memphis, state of Tennessee, a part of defendant's business being transporting coal for hire for the Turner Coal Company, a body corporate, from Palos, a point on defendant's railroad. That on said June 14 1894, plaintiff was in the employ of the Turner Coal Company. Defendant, on said day, in conducting its said business of transporting coal, did switch its "empties" and coal cars from its main line of railroad upon a spur or side track of defendant's running and about 300 feet beyond the "tipple" used for loading coal cars with coal at or near the mines of the Turner Coal Company. It was plaintiff's duty to be and remain upon said empties and coal cars while they were being switched for loading from the main line to the side track, and it was plaintiff's further duty to apply the brakes on said empties and coal cars, and stop them under the tipple, where they were loaded with coal. That on said day, while plaintiff was in the discharge of his duty upon the defendant's cars, being switched as aforesaid, plaintiff applied the brakes, as was his duty to do, to stop said cars at the tipple. That the brake plaintiff attempted to turn was defective, and, instead of stopping the cars, hurled plaintiff from the car upon the track, and the wheels of the car passed over plaintiff's right leg, whereby he lost his said leg, etc.; and that plaintiff's injuries were caused by the negligence of defendant in having and using a defective brake. The second third, and seventh counts are substantially the same in their allegations as is the first. The fourth count of the complaint avers the same facts as the first count in regard to defendant's business and plaintiff's employment and in addition avers it was plaintiff's duty to be and remain, with the knowledge and consent of defendant, upon the empties or coal cars while they were being switched for loading to and from its main line to and upon said spur or side track, and it was his duty to apply the brakes on said empties, causing them to stop at or near the tipple, for the purpose of loading them; that while in the discharge of his duty as aforesaid, on said June 14, 1894, he applied the brakes and attempted to stop the cars at or near said tipple, when said brake gave way, and hurled plaintiff onto the track, and the wheels of one of the cars passed over him, crushing his right leg, etc., to his damage, etc. Plaintiff avers that his injuries were caused by the negligence and carelessness of the agents and servants of defendant in charge and control of said train, engine, and cars, in running or switching the said car with the defective brake onto the spur or side track, attached to a car upon which plaintiff was, when the defendant's agents well knew and were informed that said brake was defective before attaching it to the car plaintiff was on, and switching it, as aforesaid. It is unnecessary to set out the allegations of the fifth and sixth counts. The defendant demurred to the first, second, third, and seventh counts upon the following grounds: (1) There are no allegations in said complaint which aver with sufficient certainty the violation by the defendant of any duty which it owed plaintiff in the premises. (2) There are no facts alleged in said complaint which show that the defendant owed the plaintiff any duty in the premises which it violated. These demurrers were sustained. To the fourth and fifth...