Clements v. Alabama G.S.R. Co.

• Decision Date: 06 June 1900
• Citation: 28 So. 643,127 Ala. 166
• Parties: CLEMENTS v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

28 So. 643

127 Ala. 166

CLEMENTS v. ALABAMA GREAT SOUTHERN R. CO.

Supreme Court of Alabama

June 6, 1900

Appeal from law and equity court, Tuscaloosa county; J. J. Mayfield Judge.

Action by Newton J. Clements against the Alabama Great Southern Railroad Company for personal injuries. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This action was brought by the appellant, Newton J. Clements against the Alabama Great Southern Railroad Company, to recover damages for personal injuries alleged to have been sustained by the plaintiff while he was in the employment of the defendant, and was in the discharge of his duties as such employé. The accident resulting in the injuries complained of occurred on a trestle or bridge along the line of defendant's railroad. The complaint contained nine counts. It was averred in each of the counts of the complaint that the plaintiff was in the employment of the defendant as a member of a bridge crew, and, after having repaired the bridge, and while attempting to put the track in alignment by using a steel bar for the purpose, in order to prize the rail into line, he was thrown from the trestle or bridge a distance of 30 feet from the ground, suffering the injuries complained of. It was also averred in several of the counts of the complaint that one Mike Staples was the superintendent or foreman of the bridge crew of which the plaintiff was a member. The averments contained in the first, second, third and fourth counts of the complaint are sufficiently stated in the opinion. In the fifth count of the complaint the negligence averred was as follows: "And the plaintiff avers that he was thrown from the said bridge or trestle, as aforesaid, and suffered all of the injuries hereinbefore mentioned, by reason of the negligence of the said Mike Staples in allowing said steel bar to be and remain in a blunt, dull, defective condition; that the plaintiff was at that time bound to conform, and did conform, to the order or directions of the said Mike Staples, and that said injuries resulted from his having so conformed." The charge of negligence complained of in the eighth count is sufficiently stated in the opinion. Under the opinion on the present appeal it is unnecessary to refer to the sixth, seventh, and ninth counts of the complaint. The defendant demurred to each of the counts of the complaint. The only ground of the demurrer interposed to the first four counts of the complaint which is necessary to be noticed on the present appeal is stated in the opinion. To the fifth count the defendant demurred on the ground that it attempts to combine within itself an action under subdivision 1 of section 1749 of the Code with an action under subdivision 3 of said section. To the eighth count the defendant demurred upon the following grounds: (1) "For that said count fails to allege that the steel bar which was being used by the plaintiff was not a proper tool or instrument with which to do the work in which he was engaged." (2) "For that said complaint shows that the damages claimed thereunder are too remote, and not the natural, proximate result of the defendant failing to furnish good and proper tools." The court sustained each of the demurrers interposed to the several counts of the complaint, and, the plaintiff declining to plead further judgment was rendered for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court in sustaining the demurrers to the several counts of the complaint.

Henry A. Jones and Robison Brown, for appellant.

Smith & Weatherly, for appellee.

TYSON J.

This appeal is prosecuted by the plaintiff in the court below from a judgment sustaining a demurrer to his complaint. The complaint contains several counts. The first, second, third, and fourth counts are attempted to be framed under the first subdivision of section 1749 of the Code. In each of them a defect in a steel bar used by the plaintiff in prizing up a rail on the defendant's track is the alleged cause of his injury. In count 1 it is alleged that the injury was caused by reason of a defect in the bar, which was dull and blunt at the end, instead of being sharp. In count 2 the allegation is that the injury was caused by the bar slipping off of or along the timber because said bar was in a defective condition, to wit, the end of it was not sharp, but blunt and dull. Count 3 alleges that his injury was suffered in consequence of the negligence of one Staples, whose duty it was to see that the bar was in good condition, in allowing said bar to be and remain in a dull, blunt, defective condition. The fourth count charges that the superintendence of the work which the plaintiff was doing for the defendant at the time of his injury was intrusted to one Staples, and he, in the exercise of such superintendence, allowed the bar used by the plaintiff to get out of order by becoming dull and blunt, and to so remain. Among the numerous grounds of demurrer assigned to each of these counts it is only necessary to refer to one, which is fatal to plaintiff's right of action as counted upon in each of them. This assignment is that these counts fail to show any cause of action against the defendant, in that they show that the injury complained of was not due to any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the defendant; in other words, the steel bar, being "disconnected from any other mechanical appliances, and operated singly by muscular strength directly applied," is not machinery in the meaning of the statute. Railroad Co. v. Brooks, 84 Ala. 138, 4 So. 289; Manufacturing Co. v. Gross, 97 Ala. 220, 12 So. 36. It is sufficient to say of the fifth count that it improperly sets forth two separate causes of action; one cause of action under subdivision 1, and the other under subdivision 3, of section 1749. Railroad Co. v. Dusenberry, 94 Ala. 413, 10 So. 274; Railroad Co. v. Weems, 97 Ala. 270, 12 So. 186.

It is clear that the eighth count does not state a cause of action under section 1749 of the Code. The question is whether it states a good cause of action at common law. The gravamen of this count is "that defendant did not provide good proper, and suitable tools...