Bryant v. Alabama Great Southern R. Co.

• Decision Date: 16 April 1908
• Citation: 46 So. 484,155 Ala. 368
• Parties: BRYANT v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

46 So. 484

155 Ala. 368

BRYANT v. ALABAMA GREAT SOUTHERN R. CO.

Supreme Court of Alabama

April 16, 1908

Appeal from Circuit Court, Etowah County; W. W. Haralson, Judge.

Action by J. T. Bryant against the Alabama Great Southern Railroad Company to recover damages for the death of plaintiff's intestate while in defendant's employment. From a judgment for defendant, sustaining demurrers to certain counts of the complaint, plaintiff appeals. Reversed and remanded.

Action for damages for death of intestate, an employé of the Alabama Great Southern Railroad. Count 1 claims of the defendant $30,000 damages for killing plaintiff's intestate while in the employment of defendant and while engaged in the active performance of his duties of said employment. The death is alleged to have been caused approximately by reason of a defect in the ways, works, machinery, or plant connected with or used in the business of the master. It is alleged that deceased was a switchman, and that the duties required of him by defendant required that he ride on the front of the switch engine, and that the defect consisted in a failure to provide the engine with the footboard or other safe means for switchmen to ride. Count 10 adopts all of count 1 down to the allegations of the proximate cause of the death, with the additional averment that his intestate's death was proximately caused by the wanton, willful, or intentional conduct of the defendant, which consisted in the fact that defendant wantonly, willfully, or intentionally used a locomotive for switching purposes with a pilot in front and without a footboard, with the knowledge that plaintiff's intestate would probably be injured thereby, and with reckless disregard of the consequences. Count 13 alleges the negligence to be that of Burton Worthy, a person in the service or employment of the defendant, who had the charge or control of a locomotive upon the track of a railway, which negligence consisted in this: It became and was the duty of said Burton Worthy, the fireman of the locomotive, to maintain a vigilant lookout on his side of the locomotive and to keep the engineer of said locomotive informed of the movements and conditions of plaintiff's intestate while said intestate was engaged in the performance of his duty of his employment, and this the said Worthy negligently failed to do. Count 14 is the same as 13, except that it charges the willful, wanton, or intentional misconduct of Worthy in failing to perform the duties therein set out, with the knowledge that plaintiff's intestate would probably be injured thereby, and with reckless disregard of the consequences. Count 15 alleges the same duties on the part of Burton Worthy, and declares that said Worthy, after becoming aware of the peril of plaintiff's intestate, negligently failed to give information thereof to the engineer of said locomotive. Count 16 is the same as 15, except that it declares on the willful, wanton, or intentional misconduct of Burton Worthy after the discovery of plaintiff's intestate's peril, with the knowledge that plaintiff's intestate would probably be injured thereby and with reckless disregard of the consequences.

The following demurrers were addressed to count 10: "The facts stated in said count fail to show any negligence on part of the defendant resulting in injury to plaintiff. (2) The using of a locomotive for switching purposes with a pilot in front and without a footboard, as stated in said count does not constitute negligence." The following demurrers were filed to the thirteenth count of the complaint "Said thirteenth count shows on its face that Burton Worthy was a fellow servant of plaintiff's intestate. (2) The count shows that Worthy was a fireman, and that there was an engineer in charge or control of the engine. (3) It appears from said count that Burton Worthy was not a person occupying such a relation to the defendant, either at common law or under the statute, as to render defendant responsible to plaintiff's intestate for his negligence. (4) The count fails to...