Central of Georgia Ry. Co. v. Alexander

• Decision Date: 09 January 1906
• Citation: 144 Ala. 257,40 So. 424
• Parties: CENTRAL OF GEORGIA RY. CO. v. ALEXANDER.
• Court: Alabama Supreme Court

40 So. 424

144 Ala. 257

CENTRAL OF GEORGIA RY. CO. v. ALEXANDER.

Supreme Court of Alabama

January 9, 1906

Rehearing Denied April 3, 1906.

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

"To be officially reported."

Action by Sylvia Alexander, as administratrix, etc., of the estate of Will Hinesley, against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Charles P. Jones, W. F. Thetford, and J. B. Jones, for appellant.

Pearson & Richardson, for appellee.

SIMPSON J.

This is an action of damages for the death of Will Hinesley, who was an employé of the defendant (appellant). The first contention of appellant is that the court erred in overruling appellant's demurrer to the complaint, on the ground that "said complaint seeks to recover for two distinct causes of action, to wit, a liability under the statute for the death of plaintiff's intestate resulting from a defect in the ways, works or machinery; and, second, for the death of plaintiff's intestate, as a result of permitting a third person to erect a nuisance." This court holds that if the defendant company permitted another company to erect a bridge over its track, and continued to operate its trains under said bridge, a defect in said bridge would constitute a defect in the ways of defendant. Consequently there were not two distinct causes of action, and the demurrer to the complaint as a whole was properly overruled.

The demurrers to counts 6, 8, and 9 were properly overruled. Said counts are sufficient under the decisions of this court. Ala. Great Sou. Ry. v. Davis, 119 Ala. 573, 24 So 862. The demurrer to the seventh count was properly overruled. While it is true that this court has declared in several cases that the court cannot affirm as a matter of law that the failure to place whipping straps on a bridge is negligence, yet, on the other hand, the court cannot affirm as a matter of law that it is not negligence; and as this count alleged that it was negligence in this case, and that the death of intestate resulted from it, it was a proper matter for consideration.

There was no merit in the third assignment of error. The amount that the decedent was being paid at the time of his death was a fair criterion as to his earning capacity. It was not necessary to prove the contract between him and the railway company.

Referring to the fourth assignment of error: Under the decisions of this court the measure of damages recoverable by the administrator of an employé is the pecuniary injury sustained by the persons to whose benefit the recovery inures, and for the purpose of ascertaining the probable pecuniary injury it is proper to inquire into the habits of economy of the decedent, what disposition he made of his earnings, etc., so as to ascertain whether he would accumulate anything, so that the distributees of his estate when he died would be likely to realize any thing out of his estate. If he spent all of his earning on himself,...