Georgia Pac. Ry. v. Davis

CourtSupreme Court of Alabama
Citation9 So. 252,92 Ala. 300
Decision Date30 April 1891

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

This action was brought by Thomas F. Davis against the Georgia Pacific Railway Company, to recover damages for personal injuries alleged to have been sustained by the negligence of the defendant in allowing a rock to project too far in one of the cuts on its road-way. There were two counts in the complaint, and to each of these counts the defendant demurred, and its demurrer was overruled by the court. Upon the evidence as adduced the court gave the following charge in writing at the request of the plaintiff: "(10) The conductor, Edmonds, was charged with the administration of the company's rules while running the train, and his assent that a brakeman should vary from such rules was the assent of the company, and the plaintiff was not guilty of contributory negligence in so varying from it." The defendant duly excepted to this charge, and also reserved separate exceptions to the refusal of the court to give the following charges, requested by it in writing: "(25) The burden is on the plaintiff to establish to your satisfaction by the evidence every material allegation of his complaint and every material fact upon which his right of recovery depends; and if you believe from the evidence that the plaintiff would not have been injured if he had been on top of the train when it entered the cut, and if the evidence leaves your minds in doubt as to whether or not he was ordered out on top of the train before it entered the cut you should find for the defendant." "(28) The burden of proof is on the plaintiff to establish by a preponderance of the evidence that he was at his post of duty when he was injured; and if the testimony upon this point is equally balanced, or preponderates in favor of the defendant your verdict should be for the defendant." From a judgment for plaintiff defendant appeals.

James Weatherley, for appellant.

White & Houze, for appellee.


The objection taken by the demurrer to the first count of the complaint as amended is that it does not sufficiently specify the defect in defendant's road-way which caused the injury complained of. The averment in this regard is that "the defendant, by its neglect and want of care, allowed its road-way to be and become greatly out of repair, unsafe, and dangerous, *** and by reason thereof the plaintiff, while in said employ, [as a brakeman,] and in the performance of his duties as such brakeman, was violently struck against a projecting rock," and thereby suffered the injuries on account of which he sues. It would require a good deal of ingenuity to draw from these facts any other conclusion or reach any other result as to the meaning of these averments than that the defect in the road-way consisted in the projection of a rock approaching so nearly to passing cars as to strike brakeman while in the discharge of their ordinary duties as such. This is that certainty to a common intent required in pleading, and is a sufficiently specific averment of the defect counted on.

2. The negligence laid in the second count of the complaint is twofold. It alleges negligence of the conductor in ordering plaintiff to ascend to the top of the train at the point of the defect, and also the negligence of the defendant itself because of the existence of the defect,-the perilous projection of the stone; and, in effect, that the defect arose from defendant's negligence. It is clear that the negligence of the conductor was dependent upon and resulted from the negligence of the company. But for the defect due to a want of care of the defendant the conductor's act could not have been a negligent one. With the defect the defendant was liable, with or without concurring negligence on the part of the conductor. Without the defect, the conductor could not have been negligent, or, had he been, no injury would have resulted. And the allegation of the conductor's negligence concurring with that of the defendant may be entirely disregarded. It may be granted, indeed, that this count fails to charge any negligence on the part of the conductor for which the company would be responsible, yet, charging as it does actionable negligence and resulting injury against the corporation, the latter would none the less, by reason of the abortive averments as to the conductor's want of care, still be liable for the injuries suffered through its own negligence. Railway Co. v. Cummings, 106 U.S. 700, 1 S.Ct. 493; Booth v. Railway Co., 73 N.Y. 38; Stetler v. Railway Co., 46 Wis. 497; Paulmier v. Railroad Co., 34 N. J. Law, 157. The first assignment of demurrer to this count is a "speaking" demurrer. It alleges that the only negligence counted on is that of the conductor in giving the order. This, in our opinion, as we have said, is not the case; and the remaining grounds of demurrer, which proceed upon this erroneous interpretation of the count, must fall with it. The objection taken to the count because of the generality of its averments of negligence is untenable. Numerous adjudications of this court support the view that under our system of pleading very general averments, little short, indeed, of mere conclusions of a want of care and consequent injury, leaving out the facts which constitute and go to prove negligence, meet all requirements of the law. Railroad Co. v. Thompson, 62 Ala. 494, 500; Leach v. Bush, 57 Ala. 145; Railroad Co. v. Crenshaw, 65 Ala. 567; Railroad Co. v. Bees, 82 Ala. 340, 2 South. Rep. 752; Railroad Co. v. Jones, 83 Ala. 376, 3 South. Rep. 902; Railway Co. v. Sistrunk, 85 Ala. 352, 5 South. Rep. 69; Railway Co. v. Lazarus, 88 Ala. 453, 6 South Rep. 877; Railroad Co. v. Watson, 90 Ala. 41, 7 South. Rep. 813.

3. The stone which collided with the person of the plaintiff did not project sufficiently from the wall of the cut to touch passing cars, though approached so nearly to them as to greatly endanger employes who should at the moment of passing that point be in the act of ascending or descending to or from the top of the train by means of ladders going up on the outside of cars or caboose. It is common knowledge that this is the usual, if not the universal, method of reaching the roof of freight trains. It may also be said to be common knowledge that employes use this means of ascent and descent while the train is in motion, and generally while it is on its way. The evidence in this case on the part of both plaintiff and defendant's witnesses tends to show that it was a custom on defendant's freight trains generally, as well as this particular one, for brakemen during the intervals when their services were not needed at the brakes, and especially in inclement weather, such as prevailed on the occasion in question, to pass to and from the caboose over the sides of the cars and along these ladders. The evidence further goes to show that conductors made no objection to this practice, and that it was the custom of the conductor of this train to order a brakeman out to the caboose about the place where plaintiff was ordered out by him on this occasion. In view of the exigencies of the service involving the use of ladders on the sides of cars by employes, and this while the train is in motion, and in view of the custom of resorting to such use, which the evidence here goes to show, we do not hesitate to affirm that it was the part of ordinary care on the part of the defendant-assuming, as the jury might have found, the truth of this testimony-to construct and maintain its road-way so as not only to admit of the safe passage of its cars, but also free from any projection or obstruction which would endanger the persons of employes in the use of these side ladders while the train is proceeding on its way, and that the defendant's failure in this regard rendered it liable to the plaintiff for any damages resulting to him from such failure, unless his own negligence proximately contributed thereto. Kearns v. Railroad Co., (Iowa,) 24 N.W. 231; Railroad Co. v. Welch, 52 Ill. 183; Railroad Co. v. Russell, 91 Ill. 298; Railroad Co. v. Johnson, (Ill.) 4 N.E. Rep. 381; Clark v. Railroad Co., 28 Minn. 128, 9 N.W. 581; Johnston v. Railroad Co., (Minn.) 44 N.W. 884; Railroad Co. v. Irwin, 37 Kan. 701, 16 P. 146; Railroad Co. v. Swett, 45 Ill. 197.

4. But it is insisted that, conceding defendant's negligence in the premises, the plaintiff must be held to a knowledge of the defect from which the injury resulted in such sort that his actual ignorance thereof, and consequent exposure to the dangers incident to it, was negligence or his part, which so contributed to the disaster as to deprive him of any right of recovery therefor. We cannot subscribe to this doctrine. Trainmen, having no functions to perform in respect of the construction and maintenance on the road-way have a right to assume its adaptation and sufficiency in all respects to a safe discharge of their duties in another and distinct branch of the general service, and are not held to a knowledge, which has never in point of fact been imparted to them, of defects and dangerous conditions in the culverts, bridges, tracks, embankments, road-bed, cuts, and tunnels of the railway company, or of the dangerous nature of adjacent structures erected or permitted by the company. The duty of the company to this class of its employes is to provide a road-way in all respects reasonably safe for the running of its trains and the performance of the functions imposed upon them by the exigencies of the service, and they have a right to assume, without inquiry or investigation, that this duty has been discharged. The onus of inquiry or investigation is not upon them. If, as matter of fact, they know of unsafe...

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