Davis v. Miller

• Decision Date: 08 April 1896
• Citation: 109 Ala. 589,19 So. 699
• Parties: DAVIS v. MILLER.
• Court: Alabama Supreme Court

19 So. 699

109 Ala. 589

DAVIS v. MILLER.

Supreme Court of Alabama

April 8, 1896

Appeal from circuit court, Mobile county; James T. Jones, Judge.

Action by Sarah M. Miller, as administratrix of the estate of Rudolph Miller, deceased, against M. L. Davis. Judgment for plaintiff, and defendant appeals. Reversed.

This action was brought on August 20, 1892, by the appellee, Sarah M. Miller, as the administratrix of the estate of Rudolph Miller, deceased, against the appellant, M. L. Davis, for the negligent killing of the plaintiff's intestate, which was alleged to have been caused by the negligence of the defendant or his employé. The complaint contained four counts. The first count, after alleging the employment of the plaintiff's intestate as a brakeman on one of the defendant's logging trains, sets forth the negligence complained of as follows: "And the plaintiff avers that under said employment it became the duty of the said Rudolph Miller to travel upon said train of cars while moving to and fro along said track, and that while the said Rudolph Miller was so in the performance of his said duty under said employment he was thrown from the said train of cars and killed, by reason of the fact that the said train of cars was thrown from said track by reason of the defective condition of the said track, which said defective condition arose from or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service of the defendant, and intrusted by him with the duty of seeing that the said track was in a proper condition; and the plaintiff avers that by reason of the said derailment of the said train of cars the said Rudolph Miller was jostled and jolted from his position, and thrown to the ground and killed, to the great damage of the plaintiff." The negligence was averred in the second count as follows "And the plaintiff avers that under said employment it became the duty of the said Rudolph Miller to travel upon said train of cars while moving to and fro along said track and that while the said Rudolph Miller was so in the performance of his said duty under said employment he was thrown from the said train of cars and killed, by reason of the fact that one of the said cars composing said train was in a defective and imperfect condition, which defect arose from, or had not been discovered or remedied by reason of the negligence of the defendant, or of some person in the service of the defendant, and intrusted by the defendant with the duty of seeing that said cars were in a proper condition and the plaintiff avers that by reason of such derailment of said cars said Rudolph Miller was thrown from his position on said train of cars to the ground, and was killed, to the great damage of the plaintiff." In the third count the negligence counted upon was alleged as follows: "And the plaintiff avers that under said employment it became the duty of the said Rudolph Miller to travel upon said train of cars while moving to and fro along said track, and that while the said Rudolph Miller was so in the performance of his said duty under said employment he was thrown from the said train of cars and killed, by reason of the fact that the engineer in charge of the locomotive which was drawing said train, and who was in the employment of the defendant, negligently ran said train of cars at a speed at which it was unsafe to run said train over said track in its then condition, and by reason of such negligence on the part of the said engineer the said Rudolph Miller was jostled and jolted, and thrown from his position on said cars, and thrown to the ground and killed, to the great damage of the plaintiff." In the fourth count the negligence complained of was set forth as follows: "And the plaintiff avers that under said employment it became the duty of the said Rudolph Miller to travel upon said train of cars while moving to and fro along said track, and that while the said Rudolph Miller was so in the performance of his said duty under said employment he was thrown from said train of cars and killed, by reason of the fact that the engineer who was in charge of the locomotive drawing said train of cars, and who was in the employment of the defendant, ran said cars in a negligent and careless manner, so as to jolt some of said cars from said track, and thereby to jolt the said Rudolph Miller from his position on said cars, and to throw him to the ground, and thereby kill him, to the great damage of the plaintiff." The defendant demurred to the first and second counts of the complaint on the grounds that it was not shown that the alleged injury was the direct and proximate result of any specific negligence on the part of the defendant, and that each count failed to aver with sufficient certainty in what the defect or imperfect condition consisted. To the third and fourth counts of the complaint the defendant demurred on the grounds that it showed that the alleged injury to the plaintiff's intestate was due to the negligence of a fellow servant, for whose acts in the premises the defendant was not liable; and that said counts fail to show in what the alleged negligence and carelessness of the fellow servants of the plaintiff's intestate consisted. These demurrers were overruled.

The defendant pleaded the general issue, and several special pleas, to which demurrers were sustained. Thereupon the defendant filed the following special pleas: "(2) For further plea and answer to each count of said complaint separately and severally, defendant says actio non, because he says that at the time of the alleged injury the said Rudolph Miller, while riding on said cars, as alleged, failed to exercise that care and diligence to keep from falling off which an ordinary prudent man, under similar circumstances, would have ordinarily exercised, and that such conduct on his part directly and proximately contributed to his alleged injury in this way: that he had frequently traveled over that part of the track, which he well knew, going up and down grade, gives an uneven and jerking motion to the train at that particular point. Yet, notwithstanding these facts, he carelessly and negligently and heedlessly proceeded to roll and light or try to light and smoke cigarettes, using his hands for such purpose, and thereby depriving himself of the ability to hold on to the car just at the critical moment, when the engine, rolling down the track on one hill, caused a slack, and as it rolled on the track over the next hill had jerked the slack out of the train, whereby Miller, by his said conduct and carelessly and heedlessly, permitted himself to fall from his place on the car to the track, whereupon the wheels of said car coming in contact with his person lying across the rail, which chocking the passage of the wheels, caused said wheels of the forward truck to mount on his body and rolled off of the rails on the cross ties, followed by other wheels and other cars, causing a derailment of said logging cars, and wrecking of said logging cars, which, with the track and train, were previously in good order and condition, which said alleged negligence of Miller directly and proximately contributed to his alleged injury and death. (3) For further plea and answer to each count of said complaint, separately and severally, defendant says actio non, because he says that the said Rudolph Miller, instead of observing and caring for his safety in the manner in which an ordinary prudent man under similar circumstances would ordinarily have have done, undertook to roll or light and smoke a cigarette, using his hands for that purpose, and thereby depriving himself of the ability at the time to hold himself safely on said cars, and that said action upon the part of said Miller was negligence which directly and proximately contributed to his said alleged injury. (4) For further plea and answer to each count of said complaint, separately and severally, defendant says actio non, because he says that at and before the alleged accident the said Rudolph Miller conducted himself in a careless and imprudent manner, and in a manner not required in the performance of any duty on his part, in this: that the said Miller, instead of riding on said cars in the manner which he could and should have done by holding on or by supporting or steadying himself by using his hands for that purpose, when the cars were going down and up hill over that part of the road where the alleged injury occurred, of the condition of which he had knowledge, and over which he had frequently ridden, and which was the proper manner for him to have acted and ridden under the circumstances, he negligently chose a more hazardous and dangerous method, and took his chances of being jostled off or thrown from the car by not using his hands to support, steady, or hold himself upon the car at the time, which action on his part was negligence, and directly and proximately contributed to his said alleged injury." The plaintiff demurred to the third special plea upon the following grounds: "(1) Because the same fails to allege any facts showing the manner in which ordinarily prudent men would, under similar circumstances, have acted for their own safety. (2) Because said plea fails to allege any facts showing that it was negligence on the part of the plaintiff's intestate to undertake to roll, light, and smoke a cigarette, and to use his hands for that purpose, under the circumstances alleged in the complaint. (3) Because said plea fails to allege any facts showing that said injury was proximately contributed to by plaintiff's intestate's undertaking to roll, light, and smoke a cigarette, and to use his hands for that purpose." To the fourth special plea the plaintiff demurred on the following...