Dean v. East Tennessee, V. & G. Ry. Co.

• Decision Date: 22 June 1893
• Court: Alabama Supreme Court
• Parties: DEAN v. EAST TENNESSEE, V. & G. RY. CO. ET AL.

13 So. 489

98 Ala. 586

DEAN v. EAST TENNESSEE, V. & G. RY. CO. ET AL.

Supreme Court of Alabama

June 22, 1893

Appeal from circuit court, Shelby county; Le Roy F. Box, Judge.

Action by J. C. Dean against the East Tennessee, Virginia & Georgia Railroad Company and the Louisville & Nashville Railroad Company to recover damages for personal injuries alleged to have been sustained by reason of the defendants' negligence. There was judgment for the defendants, and plaintiff appeals. Affirmed.

W. R Oliver and L. A. Dean, for appellant.

Pettus & Pettus, for the East Tennessee, Virginia & Georgia Railroad Company. Charles P. Jones, for the Louisville & Nashville Railroad Company.

HEAD J.

The plaintiff sues the two defendant companies jointly for a personal injury alleged to have been sustained by him through their negligence. There are three counts in the complaint. The first count alleges that on and prior to the day of the injury the two defendants operated and used a certain switch engine for the purpose of switching cars from one track to another, and in transferring cars from the East Tennessee Virginia & Georgia Railway to the Louisville & Nashville Railroad, and vice versa, in the town of Calera, and that plaintiff was in the service of the two defendants as a switchman or car coupler, in connection with said switch engine, under the command and direction of one J. W. Rhodes who was the yard master of the defendants at Calera, and while engaged in such service he was ordered by said yard master, under whose superintendence plaintiff then was, to couple cars that were standing on a side track on the Louisville & Nashville Railroad, in Calera, one of which was attached to the switch engine, and while attempting to make the coupling the iron drawheads of the two cars were driven in, and his arm was caught and injured, and that such injury was suffered by reason of defective works, machinery, or plants connected with or used in the defendants' business, to wit, the coupling and appliances used for connecting such cars, all of which, but for the want of proper care and diligence, would have been, or ought to have been, known to defendants, and were unknown to plaintiff. The second count is the same, except that, instead of alleging that plaintiff was "in the service of the defendants," it alleges that he was a switchman or car coupler in the railroad yards of the defendants at Calera. The third count is the same as the first, except that instead of the expression above quoted, it alleges that plaintiff was employed by the defendants as a switchman and car coupler.

We cannot construe these varying averments otherwise than as meaning the same thing. Taking the averments most strongly against the pleader, we are forced to construe the expression that plaintiff was in the service of the defendants, as in the first count, and that he was a switchman or car coupler in the railroad yards of the defendants, as in the second count, to mean that he was in the employ of both defendants, as alleged in the third count. Under the settled rule that the allegata and probata must correspond, to entitle plaintiff to recover, it was essential to prove that, in respect of the injury of which he complains, he bore the relation to the two defendants which he alleged. The existence of this status, as the plaintiff saw fit to allege it, must have been established as being related to the tortious acts alleged as causing the injury. The circuit court gave the general affirmative charge in favor of the defendants. The propriety of this instruction will be tested by a consideration of the evidence. The roads of the two defendants intersect or cross at Calera. By arrangement between the two companies, they employed a common...