Central of Georgia Ry. Co. v. Lamb

• Citation: 124 Ala. 172,26 So. 969
• Parties: CENTRAL OF GEORGIA RY. CO. v. LAMB.
• Decision Date: 23 December 1899
• Court: Supreme Court of Alabama

26 So. 969

124 Ala. 172

CENTRAL OF GEORGIA RY. CO. v. LAMB.

Supreme Court of Alabama

December 23, 1899

Appeal from circuit court, Lee county; J. M. Carmichael, Judge.

Action by Robert Lamb, by his next friend, Humphrey Lamb, against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

The complaint contained seven counts. These counts, as amended were as follows: First count: "Robert Lamb, a minor, who sues by his next friend, Humphrey Lamb, claims of the defendant, a corporation doing business in the state of Alabama, the sum of five thousand dollars damages, for this to wit: In the month of November, 1897, the said Robert Lamb was in the employment of the defendant in the capacity of an employé, and was engaged in the service of said employer as a laborer in laying rails on the defendant's track near a station called Dunavant, in the state of Alabama. That the said Robert was working with other hands at the time under one Mark Taylor, who was the section master of defendant under the supervision of one Coleman, whose given name is unknown to plaintiff, who was master of the extra gang of defendant. That the said Robert was working as one of the laborers of that extra gang, and was ordered by the said Coleman to hurry on to the work from the place where he had just finished eating breakfast, and, together with the other laborers, while going on to work, he had to cross a trestle about sixty feet high. While he was so crossing said trestle in going to his said work, a hand car belonging to, and being operated by, the defendant, that was in charge of the section master, the said Taylor, and on which the said Taylor and several of the laborers were riding, came running upon the said Robert when he was about half way across the said trestle, and struck him, and knocked him off of the trestle. And plaintiff avers that, in knocking him off of said trestle, there was inflicted upon him serious bodily injury to wit, his left shoulder was broken, as was his left thigh, and that his skull was cracked on the back of his head, and other serious and painful injuries inflicted. That the said Robert was confined to his bed many weeks, and said injuries at the time caused him great physical pain and suffering, as well as mental suffering, and the said Robert, by said injuries, was permanently disabled, and is not able physically, on account of said injuries, to perform any work. Prior to the said injuries, said Robert was strong and healthy. And said injuries were caused by reason of the defects in the condition of the ways, works, machinery, or plant used in the business of the defendant, viz.: The said car was defective; the means and appliances for stopping said car were defective; the said defects arose from, or had not been discovered or remedied by reason of, the negligence of defendant, or of some person in the service or employment of defendant, intrusted by the defendant with the duty of seeing that said works, machinery, or plant were in proper condition; wherefore plaintiff sues." The allegations of negligence, as contained in the other counts of the complaint, were as follows: Second count: "Plaintiff was on his way to his work, and in going to his work, under the orders of defendant's agent, whose name is unknown to plaintiff, he was, with the other laborers, necessarily walking across a trestle about sixty feet high, when a hand car, being operated by the defendant under the management of one Mark Taylor, who was at the time section master for the defendant, was run so negligently that it struck the said Robert while he was on said trestle, and knocked him off. *** And plaintiff avers that the said hand car was being negligently run by the said section master, to whom its superintendence was intrusted, and while in the exercise of said superintendence the said injuries to the said Robert occurred, and at the time and place of said injuries the said defendant was owning and operating said railroad in this state, and was then and now doing business in Lee county, Alabama, by agents. The plaintiff's injuries were caused by the negligence of the running of said hand car by the said Mark Taylor, some one in defendant's employ; wherefore plaintiff sues." Third count: "That in the month of November, 1897, the said Robert Lamb was in the employment of the defendant as a laborer in working on said defendant's railroad track. That while going to his work, to which he was ordered to go by one Coleman, whose given name is unknown to plaintiff, who was the defendant's agent or employé in charge of the extra work at the time, and to whose orders the said Robert, at the time of the injury, was bound to conform, and did conform, he, the said Robert, was run down by the hand car under the management and control of one Mark Taylor, who was defendant's section master, while he was necessarily walking on a trestle, going to his work, a few hundred yards east of Dunavant, a station in the state of Alabama, on said railroad, and was knocked off of said trestle by said hand car, on account of the negligence of defendant's agents, and his left shoulder and his left thigh were broken, and other serious and painful injuries inflicted upon him that entailed great physical suffering and permanent physical disability, which resulted from his so conforming to the said orders of the defendant's said section master, and at the time and place of said injuries the defendant was owning and operating said railroad in this state, and was then and is now doing business in Lee county, Alabama, by agents; wherefore plaintiff sues." Fourth count: "While in said employment the said Robert, while walking across a trestle, the usual way of going to his work, a few hundred yards east of the said station of Dunavant, in the state of Alabama, was run down by a car operated by the defendant, and knocked off of a trestle about sixty feet high, by reason of the negligence of the section master of said defendant, and who had the charge or control of said car. *** And said plaintiff's injuries and damages were caused by reason of the negligence of the said person in the service of the said defendant, who had charge of the car that caused the injury to the said Robert. *** Plaintiff avers that crossing the trestle to go to his work was the usual and safe way of going to his work, and that he did not know that a car was approaching at the time he tried to cross said trestle; and he knew of no other way to go to said work, he being a minor and inexperienced, and had been in the employment of defendant only a short time." Fifth count: "While he was thus employed in the discharge of his duty, and was crossing the trestle at said place, a hand car operated by the defendant, in the control of defendant's section master, Mark Taylor, who, with other laborers riding upon it, ran down upon the said Robert, and owing to the defects of said car, in not being properly fixed so as to control it, it ran upon the said Robert, violently knocked him off of the said trestle, broke his thigh and his shoulder, and occasioned other serious injuries, causing great physical pain and mental suffering, and permanently physically disabling him from work, caused by the defects that prevented the proper control of the said defendant's car; wherefore plaintiff sues." Sixth count: "While so crossing said trestle, a hand car operated by the defendant, under the control, management, and direction of defendant's section master, came running, at a great rate of speed, so rapidly that the said defendant's agents did not control it, and it struck the said Robert very violently, and knocked him off the said trestle. *** And plaintiff avers that said injury was caused by the gross negligence of the running of the defendant's hand car at said time; that it was run wantonly, recklessly, and with gross negligence, regardless of the said Robert's danger, and on account of said negligence inflicted on the said Robert the said grievous injuries. At the time and place of said injuries the defendant was owning and operating the said railroad in this state, and was then and is now doing business in Lee county, Alabama, by agents; wherefore plaintiff sues." Seventh count: "While on said testle, a hand car, otherwise called a 'pole car,' that was being operated by defendant at the time, and which was under the control of defendant's section master, and on which other laborers were riding, said car, while running down grade at a very high rate of speed, ran upon and knocked the said Robert off of said trestle, inflicting serious bodily injuries; *** and plaintiff avers that said car was being operated recklessly, wantonly, and with gross negligence by the defendant or its agents at that time."

To each of these amended counts of the complaint the defendant filed the following demurrers:

First. To the first count: "(1) It fails to show or aver that the said Robert Lamb was forced to walk across said high trestle; (2) it fails to show or aver that there was no other way to cross said trestle except by walking across the same; (3) it fails to show or aver that said Robert Lamb crossed said high trestle in obedience ot the order or command of a superior, whose orders he was bound to obey and did obey; (4) it fails to show or aver any necessity or legal excuse on the part of said Robert Lamb for crossing said trestle."

Second. To the second count: "(1) Because it fails to show or aver who the person in defendant's employ was whose negligence it is alleged caused plaintiff's injuries; (2) it fails to show that the person whose negligence it is alleged injured plaintiff bore such relation to the defendant company as to render it liable for his acts to plaintiff as an employé of defendant;...