Georgia Pac. Ry. Co. v. Love

• Decision Date: 08 January 1891
• Citation: 91 Ala. 432,8 So. 714
• Parties: GEORGIA PAC. RY. CO. v. LOVE.
• Court: Alabama Supreme Court

8 So. 714

91 Ala. 432

GEORGIA PAC. RY. CO. v. LOVE.

Supreme Court of Alabama

January 8, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

An action on the case by appellee, J. T. Love, against appellant corporation, for an injury received by plaintiff while a passenger on defendant's railroad. The first count alleges that defendant was a common carrier of passengers between Birmingham and Little Warrior, besides other points along the line of railroad, on the 20th day of January, 1887 and that plaintiff on that day entered one of its cars called a "caboose," at Birmingham, as a passenger therein and paid defendant's conductor, who had authority to receive the same, the fare charged to carry him from Birmingham to Little Warrior station, on said railroad, and it thereby became and was the duty of defendant to safely carry plaintiff to said Little Warrior station; but defendant failed to perform its duty in this respect, by and through the negligence of defendant and its employes, agent or agents, in the running, management, and control of its train and that plaintiff, while riding in said car as a passenger as aforesaid, and on the day aforesaid, was bodily injured bruised, and mangled, by the breaking or spraining of his wrist, at or near the pump-house on Village creek, and between Birmingham and Little Warrior station. The second count is the same as the first, except the second count alleges that it was the duty of defendant to use due care and diligence to carry him safely to Little Warrior; but appellee avers "that the defendant or its employes and agents managing, controlling, and running its said train upon which plaintiff was a passenger as aforesaid, neglected said duty, and negligently or carelessly run the engine, or other cars attached to the engine, at or near the pump-house, on the line of said railroad, and between said city of Birmingham and Little Warrior station, on and against the car on which plaintiff was being carried as a passenger as aforesaid, with such unnecessary force as to throw plaintiff violently against the floor of said car upon which he was being carried as a passenger as aforesaid, whereby plaintiff was badly bruised," etc. The defendant filed the following demurrers to the complainant: First. It does not state any fact or circumstance tending to show the injury complained of as caused by defendant's negligence. Second. Because said complaint does not sufficiently inform defendant of the plaintiff's cause of action. Third. Because said complaint does not sufficiently set forth the facts which constitute the negligence complained of. The demurrer was overruled by the court, and defendant excepted. The defendant then pleaded the general issue, upon which appellee took issue. The testimony of plaintiff tended to show that he was a passenger on defendant's train on the day stated in said complaint; that the train was a mixed train of freight and passengers; that the only seats in the caboose, in which he and six or eight other passengers were riding, was one chair and some tool-boxes, which were situated on the side of said caboose; that all of the passengers could be seated on these tool-boxes and chair, and all were seated from the time said train left Birmingham until it reached the pump-house, where the injury to plaintiff occurred; that when the train arrived at the pump-house, about two miles from Birmingham, it stopped on the main line, and the balance of the train was cut loose from the rear or caboose, and was carried by the engine onto a side track, to take on another car, the caboose remaining on the main line. A short time after the train stopped, the plaintiff left his seat, and went to the side door of the car, and was looking out of a glass window in the upper part of the door, the door being closed; and, while he was standing at the window, the engine and balance of the train, without notice or warning, came back against the caboose with such force that plaintiff was thrown to the floor of the car, and one of the other passengers was thrown on him. Plaintiff's wrist was dislocated or broken by the fall, and he was thereby totally disabled from using the injured arm for a period of six weeks, and did not recover from said injury for twelve months. The defendant introduced a...