Columbus & W. Ry. Co. v. Bradford

• Decision Date: 08 May 1889
• Parties: COLUMBUS & W. RY. CO. v. BRADFORD.
• Court: Alabama Supreme Court

6 So. 90

86 Ala. 574

COLUMBUS & W. RY. CO. v. BRADFORD.

Supreme Court of Alabama

May 8, 1889

Appeal from circuit court, Tallapoosa county; JAMES W. LAPSLEY Judge.

This was an action brought by the administrator of John Bradford a late employé of a railroad corporation, against the corporation, for the alleged negligent killing of plaintiff's intestate. Defendant pleaded by special plea contributory negligence. The second special charge requested by defendant to be given to the jury, referred to in the opinion, and which was refused by the court, was as follows "If the jury believe from the evidence that the intestate, John Bradford, was an employé of the defendant and was laboring under the direction of O. Prather, and that the said O. Prather had removed the stone so that the train could pass unobstructed on the track, and if the said Prather, as an additional precaution of safety to the intestate, directed him, as an employé, to leave the place when a train was passing, and if the jury further believe that the said John Bradford saw the car when it approached, and expressed the opinion that the standard of said car would strike the stone, and said John Bradford remained, and was struck and crushed by said stone, then such conduct of the said Bradford was such fault and negligence on his part as would preclude the plaintiff from recovering damages of the defendant in this state." Defendant excepted to the refusal to give the charges asked. There was verdict and judgment for plaintiff, and defendant appeals.

George P. Harrison, Jr., for appellant.

W. J. Samford and W. D. Bulger, for appellee.

McCLELLAN J.

The liability of a master or employer for injuries to an employé at common law was limited to those cases in which the damages claimed resulted from the negligence of the master or employer himself, or some employé higher in authority in the common service than the plaintiff, as distinguished from the negligence of fellow-employés bearing the same or inferior relations to the master as those borne by the party injured. To an action for injuries sustained through the fault of the employer or superior employé, it was a good defense that the complaining employé had, by failing to exercise due care, contributed to the result of which he complained. Contributory negligence, which would defeat an action, might have consisted of a failure on the part of the plaintiff, either to reasonably give notice of the defect in appliances used in his employment, or of the negligence of his superiors, if known to him, which produced the injury; or, having given such notice, to quit the service to which such defect or negligence was incident after a reasonable time had elapsed for its correction. The "Employés' Act" of 1885, now, with slight changes in verbiage and arrangement, constituting sections 2590, 2591, and 2592 of the Code, enlarged the liability of the master by extending it to cases in which the injury had resulted, under certain circumstances and conditions, from the negligence of fellow-employés. The existing law was supposed to fall short of the attainment of justice in that, and only in that, no action was allowed for the negligence of a certain class of persons. The statutory purpose was to charge the master for the negligence of this class of persons in his employment in the same manner, under like conditions, and to the same extent, as he was before charged for his own negligence, or that of superior employés. In the effectuation of this purpose, it became necessary to go further than a mere declaration of liability for the negligence of the fellow-servants of the plaintiff, and to guard against a construction of that declaration which would give to the employés redress for the fault of their co-employés, to which they would not have been entitled for that of the employer, or of a superior servant of the common master. To this end-to preserve to the master the same defense against the negligence of his servants as he had against the consequences of his own carelessness-the legislature declared that the should not be liable if the complaining employé knew of the defect or negligence which caused the injury, and, that not being aware that the fact was already known to the master or some person superior in authority, failed to communicate his knowledge to the employer or superior employé. This provision of the statute, therefore, relates to purely defensive matter,-the contributory negligence of the plaintiff,-which, in this case, was properly omitted from the complaint, and left to be brought to the attention of the court by plea. Thompson v. Duncan, 76 Ala. 334; Railway Co. v. Chambers, 79 Ala. 338; Wilson v. Railroad Co., 85 Ala. 273, 4 South. Rep. 701; Railway Co. v. Holborn, 84 Ala. 133, 4 South. Rep. 146; Railway Co. v. Bridges, 5 South. Rep. 864.

The demurrers to the third, fourth, and fifth counts of the complaint, which are framed under or with reference to section 2590 of the Code, so far as they are predicated upon the failure of these counts to negative this species of contributory negligence, were properly overruled.

What is here said, however, must not be understood as having any application to the last clause of section 2590, which provides that the master or employer shall not be "liable under subdivision 1, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to, the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition." This provision manifestly relates, not to defensive matter, but to the negligence of the defendant, and facts would probably have to be averred in the complaint, if drawn under the first clause of the section, which would show that the defect causing the injury was within these limitations. As this point does not arise in the case at bar, however, it is not decided.

The suit was properly instituted by the personal representative of the deceased employé, and it was unnecessary to allege that the intestate left surviving him any heirs at law. A collateral fact of this character, the existence of which in almost all cases is common knowledge, will be presumed. Thompson v. Duncan, 76 Ala. 334.

The first count of the complaint is good under section 2589 of the Code, in connection with the common-law liability of the master to his servants and to strangers for his own negligence. The sixth count (even if some defects, which are so patent as to justify their being treated as clerical misprisions, be not considered) is bad, but none of the demurrers reach the point of its infirmity. The third, fourth, and fifth counts, we think, sufficiently aver the facts necessary to constitute liability under one or the other of the last three subdivisions of section 2590. We therefore hold that the action of the court below, in overruling the several demurrers to the complaint, was free from error.

The defendant pleaded the general issue, contributory negligence and several...