Brown v. Louisville & N.R. Co.

• Decision Date: 14 April 1896
• Citation: 111 Ala. 275,19 So. 1001
• Parties: BROWN v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

19 So. 1001

111 Ala. 275

BROWN v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

April 14, 1896

Appeal from circuit court, Mobile county; J. R. Tyson, Judge.

Action by H. H. Brown against the Louisville & Nashville Railroad Company. Judgment for defendant. Plaintiff appeals. Reversed.

This action was brought by Henry H. Brown, as administrator of the estate of James L. Brown, deceased, on October 15, 1891 against the Louisville & Nashville Railroad Company, to recover damages for personal injuries resulting in the death of the plaintiff's intestate, alleged to have been caused by the negligence of defendant's employés. The complaint as originally filed, contained 5 counts. It was subsequently amended by the addition of 11 other counts. The rulings in reference to some of the counts of the original complaint and amended complaint are not called in question, and such counts are not referred to in the following statement of facts. The seventh count of the complaint, after its prefatory averments that the defendant employed the plaintiff's intestate to serve upon one of its trains in the capacity of a brakeman then averred that the defendant "did also hire and employ another person, whose name is unknown to plaintiff but to whom the defendant intrusted the charge and control of its locomotive or engine, and the said James L. Brown as killed by reason of the negligence of such person in this that, while the said James L. Brown was engaged in uncoupling a car from the tender attached to said engine, such person so in charge of said engine negligently undertook to make a running switch, and in doing so negligently ran said engine and tender back upon said James L. Brown, so as to catch crush, and kill him, to the great damage of plaintiff." To this count of the complaint the defendant pleaded not guilty, and the following special plea: "(2) And for further plea or answer to the whole of said complaint, as amended, and to each count thereof, defendant says that at and prior to the time of the injury to plaintiff's intestate, it had promulgated and had in force a rule, part of which is as follows: *** 'Stepping upon the front of approaching engine, jumping on or off train or engine moving at a high rate of speed, getting between cars while in motion, to uncouple them, and all similar imprudences, are dangerous, and in violation of duty.' Of which said rule plaintiff's intestate had notice, and defendant avers that plaintiff's intestate did go in between the tender of an engine and the car to which it was coupled, while the same was in motion, in violation of said rule, thereby contributing directly and proximately to his own injury and death." To to the second plea of the defendant the plaintiff demurred on the following grounds: "(1) Because it does not appear, from said plea, that the plaintiff's said intestate had knowledge of said rule of the defendant before his said injury. (2) Because it does not appear that said rule is reasonable and practicable, and it does not appear that the work which was required of the plaintiff's intestate by the defendant under his said employment could have been done in compliance with said rule. (3) Because no facts are stated therein showing that the plaintiff's said intestate got between cars while in motion, or otherwise violated said rule." The demurrers to the second plea were overruled, and thereupon the plaintiff filed several replications to said pleas, among which was the following: "(3) For further replication to the second plea by the defendant pleaded, plaintiff says that it was not practicable to perform the duties of said employment without violating the rule by the defendant pleaded." To the plaintiff's third replication to the defendant's second plea to the seventh count of the complaint the defendant demurred on the following grounds: "(1) Because said replication only states the conclusion of the pleader. (2) Because no fact or circumstance is stated showing why it was not practicable to perform the duties of the employment of plaintiff's intestate without violating the said rule." The defendant also demurred to the plaintiff's other replications to its pleas. The demurrer to the third replication was sustained. Thereafter the plaintiff amended his complaint by adding 10 additional counts. The eighth, tenth, twelfth, thirteenth, and fourteenth counts aver that the injury was caused to the plaintiff by reason of the negligence of the engineer to whom was intrusted the charge and control of his locomotive, in moving the engine backward without exercising reasonable care to ascertain the whereabouts of the plaintiff's intestate with certainty, and that, while he knew that plaintiff's intestate was probably between the engine and car, he nevertheless negligently continued to run his engine back, towards and upon the plaintiff's intestate, with force and violence, and thereby killed him. In the ninth, eleventh, fifteenth, and sixteenth counts of the complaint, there were the prefatory averments that the plaintiff's intestate had been employed by the defendant as a brakeman upon one of its trains, which averments were followed by the allegations which are copied below. These counts, as originally filed, were without those averments which are italicized and within brackets, such averments being afterwards added by amendment: (9) And the defendant "did also hire and employ another person, whose name is unknown to the plaintiff, but to whom the defendant intrusted the duty of a fireman upon said locomotive or engine, and the said James L. Brown was killed by reason of the fact that while he, the said James L. Brown, was upon the railroad track, between said engine and said car, engaged in the performance of his duties in uncoupling said engine from said car, and while he, the said fireman, knew that said James L. Brown was in such perilous position, and while he knew that the said engineer was moving, or was about to move, said engine towards the same James L. Brown, with such force and violence as to greatly endanger his life, he, the said fireman, failed to notify the said engineer of the said perilous position of the said James L. Brown [ although it was his duty, as such fireman, to have so notified said engineer]; and by reason of the said failure on the part of the said fireman, said engineer ran said train back upon said James L. Brown with such force and violence as to throw him to the ground, and kill him, to the great damage of the plaintiff." (11) And the defendant "did also hire and employ another person, by the name of McDonald, to whom it intrusted the duties of fireman upon its said engine, and that said James L. Brown was killed by reason of the fact that, while he was about to go upon said railroad track, between said engine and car, for the purpose of uncoupling them, as was his duty, said fireman negligently allowed said engineer to remain unaware of the fact that said Brown was about to go between said engine and car, although he, said fireman, well knew said fact [ although it was his duty, as such fireman, to have informed said engineer of such perilous position of said James L. Brown, and] by reason of all of which said engineer backed his said train against the said Brown, and killed him, to plaintiff's damage, as aforesaid." (15) And the defendant "did so hire and employ another person, by the name of McDonald, to whom it intrusted the duties of fireman upon said engine, and the plaintiff avers that the said James L. Brown was killed by reason of the fact that, while he was between said engine and a car, in the performance of his duty, and for the purpose of uncoupling them, the said McDonald well knowing that the engineer in charge of said engine was not aware of said perilous position of said Brown, nevertheless failed to inform the said engineer of the said perilous position of said Brown [ although it was his duty, as such fireman, to have informed said engineer], by reason of which the said engineer backed said train against said Brown, and killed him, to plaintiff's damage, as aforesaid." (16) And the defendant "did also hire and employ another person, by the name of McDonald, to whom it intrusted the duties of fireman upon said engine, and the plaintiff avers that the said James L. Brown was killed by reason of the fact that, although the said Brown was in a perilous position in the performance of his duty, to wit, between said engine and said car, and although this fact was unknown to the engineer, and was well known to said fireman, and although said fireman knew that it would greatly imperil the life of said Brown for the engineer to continue to back said train, nevertheless failed to inform his said engineer of the said perilous position of said Brown [ although it was his duty, as such fireman, to have informed said engineer], by reason of which said engineer backed said train against said Brown, and killed him, to the plaintiff's damages, as aforesaid." The demurrers to the eighth, tenth, eleventh, twelfth, thirteenth, and fourteenth counts were overruled, and it is not, therefore, necessary to notice them. To the ninth, eleventh, fifteenth, and sixteenth counts the defendant demurred separately, upon the following grounds: "(1) Because said count seeks a recovery for the negligence of a fellow servant. (2) Because the fireman, whose negligence is charged to have been the cause of the accident, is not shown to have had charge or control of any signal points, locomotive, engine, switch, car, or train, at the time of said injury. (3) Because the failure of the fireman to notify the engineer of the peril of the plaintiff's intestate does not render the defendant liable for accident. (4) Because said count is a departure from the original complaint. (5)...