Chamberlain v. Southern Ry. Co.
| Decision Date | 18 January 1909 |
| Citation | 159 Ala. 171,48 So. 703 |
| Parties | CHAMBERLAIN v. SOUTHERN RY. CO. |
| Court | Alabama Supreme Court |
On Rehearing, February 16, 1909.
Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.
Action by Bart B. Chamberlain, administrator, against the Southern Railway Company, for the death of his intestate. From a judgment for defendant, plaintiff appeals. Reversed and remanded.
The complaint contains several counts, all of which were eliminated by demurrer, except the second count, which, as last amended, is as follows: "Plaintiff claims of defendant $5,000 damages, for that on the 13th day of October, 1906, the defendant was then and there a public common carrier, and operating a railroad in the city of Mobile, which ran to other points without the city of Mobile and plaintiff's intestate, Major Brown, was then and there a laborer in the service of defendant's company that while said Major Brown was in the employment of defendant, and as a part of the duties thereof, he was put to work to unloading a certain box car for the defendant in the city of Mobile, loaded with bales of cotton, and pursuant to said work he was instructed to open a sliding side door of said box car, and while in the act of so opening the same, and before he could get away from the place where the said act of opening occurred, a bale of cotton of large weight, to wit, approximately 500 pounds, fell out of said car upon him, and mashed and crushed him so that his death was caused thereby; that it was the duty of the defendant company to exercise reasonable care to so load or cause to be loaded the bales of cotton in said box car that, when the door was open, said cotton would not fall out of said car and injure any employé opening said door, but defendant negligently violated said duty, and as a proximate result thereof the said Major Brown was crushed by said falling cotton bale and killed."
It was admitted that plaintiff's decedent was killed by a falling cotton bale while engaged in the services of defendant. The evidence for the plaintiff further tended to show the nature of the injuries received from which the death resulted. The evidence further tended to show that, when Brown was killed, he and John Friend were opening a car; that the instruction for opening the car came from Mr. Thomas, who was in the employment of the defendant company, and was boss over the men, and that the order from him was to open the car--to shove open the door; that when the door was shoved open Friend stepped back a little, but that Brown was right in front of the door, and as he stepped on the platform the bale came right over and caught him, crushing him. Brown had just started to work for the defendant that morning, while Friend had been working for about a year. The car was loaded with cotton, two bales deep, one bale setting on the end on top of another. The bale did not fall as soon as the door was held open, but fell as Brown turned around to step on the platform. This all happened in the city of Mobile on the premises of the defendant. It was further shown that there was a spring in the middle of the doors which released the doors of the car, and as the door passed open the bale tilted and fell out. It was further shown that nobody pulled the bale of cotton to give it a start; that the bales of cotton were not pinned or tied together, or fixed in any way; and that there were no boards nailed across the door to prevent them from falling out, nor was there any other precaution taken to prevent the same. On motion of the defendant the court excluded all the evidence offered by the plaintiff on the ground that it failed to make out a case under the second count.
R. W. Stoutz and Roach & Chamberlain, for appellant.
Bester, Bestor & Young, for appellee.
Under the common law the master is responsible for his own negligence and want of care, and this may appear from his failure to furnish proper machinery and materials for the work, or from the employment of incompetent...
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