Culver v. Alabama Midland Ry. Co.

• Decision Date: 19 December 1895
• Citation: 108 Ala. 330,18 So. 827
• Parties: CULVER v. ALABAMA MIDLAND RY. CO.
• Court: Alabama Supreme Court

18 So. 827

108 Ala. 330

CULVER v. ALABAMA MIDLAND RY. CO.

Supreme Court of Alabama

December 19, 1895

Appeal from circuit court, Dale county; John R. Tyson, Judge.

Action by Levin L. Culver, administrator or Virgil Mowdy, deceased against the Alabama Midland Railway Company. Judgment for defendant. Plaintiff appeals. Reversed.

This action was brought by the appellant, as administrator of Virgil Mowdy, deceased, against the Alabama Midland Railway Company, to recover damages for injuries which resulted in his intestate's death, and which was alleged to have been caused by reason of the negligence of the defendant. Virgil Mowdy, at the time of the accident, was a section hand in the employment of the defendant, and was injured by an "ash-pan scraper," which was used for cleaning out the ash pan of the engines, falling from a passing engine and striking the plaintiff's intestate on the head and chest, from the effects of which wounds he died in 23 hours.

The complaint, as originally filed, contained nine counts. The first count was stricken from the complaint without objection. The second count of the complaint, after alleging the fact of plaintiff's intestate being a section hand in the employment of the defendant, and while in the discharge of his duties, further alleged that the intestate "was struck on the head and breast by an iron bar or scrape of great weight and size, which was negligently allowed to fall from one of defendant's locomotive engines," drawing one of its trains, and then continues: "And plaintiff avers that said injuries and death to plaintiff's intestate occurred as aforesaid by reason of the carelessness and negligence of the engineer in charge and control of said engine in this: that said engineer negligently and carelessly suffered said iron bar or scrape to fall from said engine." In the third complaint, after the prefatory allegations of employment, etc., the negligence complained of was thus alleged: "Plaintiff avers that said scrape fell from said engine, and in consequence said injuries and death occurred to said intestate, by reason of the carelessness and negligence of the engineer in charge and control of said engine, in this: that as said engine was passing where plaintiff's intestate was engaged in the performance of his duties, as aforesaid, said engineer negligently and carelessly gave said engine a great, violent, and sudden jerk, which threw said scrape upon said intestate, whereby he was killed as aforesaid." In the fourth count the negligence complained of was thus averred: "And plaintiff avers that said intestate was killed as aforesaid by reason of defective works, machinery, or plant connected with or used in defendant's said business, in this: the appliances for holding and keeping said iron scrape on said engine were defective, and out of repair, and which, for the want of proper care and diligence, would have been and ought to have been known to the defendant, and was wholly unknown to plaintiff's intestate." In the fifth count it was alleged that in the use and operation of the engines by the defendant it was necessary to have iron scrapes, and that it was the duty of the defendant to provide and maintain suitable appliances for holding said scrapes on its engines so as to prevent them from falling off while in motion or otherwise; but that "the defendant, notwithstanding its said duty in this behalf, did not provide its certain locomotive" from which the scrape fell which struck the plaintiff's intestate "with such necessary appliances in order to hold the iron scrape belonging to said engine, whereby, and in consequence of which, said iron scrape used by and belonging to said engine fell on plaintiff's intestate, and so wounded and injured said intestate that he died." In the sixth count of the complaint, after allegations of the necessity for having iron scrapes on the engine for the use of the fireman, the negligence complained of was as follows: "And plaintiff says that said iron scrape, being one of the appliances of and belonging to said engine, fell from said engine by reason of the carelessness and negligence of defendant's employé in charge and control of the said engine and its appliances in that said employé did not place, or cause to be placed said iron scrape in a reasonably secure place and position to prevent its falling." In the seventh count, after similar prefatory allegations, the negligence complained of was then stated as follows: "And plaintiff says that said injury and death occurred by the reason of the said iron scrape falling from said engine, and that the same fell by reason of some defect in said engine or the tender attached thereto, which said defect was unknown to plaintiff's intestate, and had not been discovered or remedied owing to the negligence of some person in the defendant's service, and intrusted by the defendant with the duty of seeing the ways, works, machinery, appliances, etc., were in proper conditions, the name of said person being unknown to plaintiff or to plaintiff's intestate." In the eighth count the negligence counted upon was thus averred: "And plaintiff avers that said scrape fell by reason of the negligence of some person in the employment or service of the defendant, and then having charge and control of said engine and tender, that the employé who negligently suffered or caused said scraper to fall from said tender was and is unknown to plaintiff, but plaintiff declares that he was an employé of the defendant, and had control of said engine and tender and all of the appliances thereunto belonging." In the ninth count, after the allegations of the circumstances of the accident were alleged, the negligence counted on was alleged as follows: "And plaintiff avers that said scrape fell and said injuries occurred by reason of the negligence of the defendant's employé who was in charge of said tender at the time of said injury; and that said employé had the superintendence of said tender intrusted to him, and said injury resulted while he was in the exercise of such superintendence."

The second, third, sixth, eighth, and ninth counts were demurred to on the following grounds: Because they "nowhere aver that the employer, the said railway company, did not use due care in procuring competent and fit servants for said business, or that the servant through whose negligence the injury was occasioned was not fit or competent for the business in which he was engaged." The fourth count was demurred to because "it fails to aver what said appliances were for holding and keeping said scrape on said engine, or in what respect the same were defective and out of repair." The fifth count was demurred to because it did not aver what was the nature or character or description of the appliances referred to therein, which the defendant failed to provide and maintain; and further, because the allegations of negligence on the part of defendant were too vague and uncertain in this regard. The seventh count was demurred to upon the following grounds: Because "it is alleged in the seventh count of the complaint that plaintiff's intestate was struck on the head by an iron scrape falling from a passing locomotive of defendant company on its railroad tracks, and that the same fell by reason of some defect in said engine or tender, unknown to plaintiff's intestate; but it is not averred therein what the defect consisted of, or the nature, character, or description of such defect, or how or in what manner the same could have been remedied or rendered safe and secure." The demurrers to the second, third, six, eighth, and ninth counts of the complaint were sustained, to which ruling of the court the plaintiff duly excepted. Thereupon a tenth count was added, in which the negligence complained of was alleged as follows: "And plaintiff further avers that said scrape fell from said engine by reason of the negligence of some person in the employment of the defendant to whom the defendant had intrusted the superintendence and control and charge of the said engine, and the fireman and...