Going v. Southern Ry. Co.
| Decision Date | 13 May 1915 |
| Docket Number | 14 |
| Citation | 69 So. 73,192 Ala. 665 |
| Parties | GOING v. SOUTHERN RY. CO. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Fayette County; Bernard Harwood, Judge.
Action by John Going, by next friend, against the Southern Railway Company, for damages for injuries while an employé. Judgment for defendant, and plaintiff appeals. Affirmed.
Transferred from Court of Appeals under Acts 1911, p. 449, § 6.
The following is the complaint:
Count 1: After stating the relation of the party, and that on the day of the accident plaintiff was a hand on the repair train of defendant, and that at or near Alta, in Fayette county while plaintiff was so engaged, he was struck by a large piece of coal near or on the side track, and was knocked insensible (here follows catalogue of injuries):
And plaintiff avers that the cause of said injury was for the negligent manner and the great rate of speed that the engineer in charge of said train ran said engine.
The only amendment to count 1 appearing in the record is the striking out of the words "60 miles an hour" (which do not appear therein), and adding in lieu thereof "at a high rate of speed," and by striking therefrom the word "engine," and adding in lieu thereof "the tender of the engine," and by striking out the words "rights of way," and adding in lieu thereof "about 10 or 15 feet from the end of the cross ties."
The following is count 2:
Plaintiff claims of the Southern Railway, a corporation, the sum of *** damages for that *** plaintiff was employed by defendant as a work hand on the work train; and while in the discharge of his duty as a work hand upon the same, and while the said work hand was standing on the train at Alta, and they were ordered to move back upon the side track for the purpose of letting the passenger train pass, the passenger train of defendant passed, running at a high rate of speed to wit, 60 miles an hour, and the coal of the engine flew off and struck plaintiff, who was 10 or 15 feet from the right of way, *** to his damage. Plaintiff avers that the damages he received was caused by the negligence of defendant's servants or agents in charge of said train by the rate of speed at which they were running said train.
Count 6: After stating facts substantially as stated in count 2 (omitting the specific rate of speed and adding that the coal was thrown from the tender of the engine), it is averred that the damages received was caused by the negligence of defendant's agents or servants in charge of said train by running at such high rate of speed.
Count 7 states the facts as does count 2, and avers that the damages received was caused by the negligence of defendant's agents or servants in charge of the work train by directing plaintiff to be at the place where he was at the time of such injury.
Walter Nesmith, of Vernon, for appellant.
Bankhead & Bankhead, of Jasper, for appellee.
Suit by appellant against appellee for recovery of damages for injuries sustained while a member of a ditching or construction crew of the defendant company. The minute entry discloses that the cause proceeded to trial upon counts 2, 3 4, 5, and 6 of the complaint as amended, but counts 4 and 5 nowhere appear in this record.
Count 1 appears to be very vague and indefinite, and the amendment thereto did not tend to aid it in this respect, and we are of the opinion that the demurrer to said count, as originally framed and as amended, was properly sustained.
Count 6, as originally framed, failed to allege that, at the time of the injury, plaintiff was acting within the line and scope of his employment, or engaged in the performance of his duties under such employment, and there was no error in sustaining the demurrer to said count. Sou. Ry. Co. v Guyton, 122 Ala. 240, 25 So. 34; Ga. Pac. Ry. v. Propst, 85 Ala. 203, 4 So. 711; Sou. Ry. v. Bentley, 1 Ala.App. 359, 56 So. 249. The count, being amended in this particular, was sustained by the court below.
Count 7 purports, as we understand it, to state a cause of action under subdivision 3 of the Employers' Liability Act (section 3910, Code 1907). This count, in addition to being subject to the defect pointed out as to count 6, also fails to aver that the order given plaintiff to be at the place where he was at the time of the said injury was given by a person to whose orders and directions he was bound to conform, and in obedience to which he did conform, and there was no error in sustaining the demurrer to this count.
This disposes of all the assignments of error relating to the question of pleading. As previously stated, the minute entry shows that the cause proceeded to trial upon counts 2, 3, 4, 5, and 6 of the complaint, as amended, and plea 1, which was the general issue; but counts 4 and 5 do not here appear. Count 3 was for wanton or intentional injury, and, as there is no tendency of proof whatever in support of this count, it may be here laid out of view.
Counts 2 and 6 rely for recovery upon simple negligence and are evidently based upon subdivision 5 of the Employers' Act. Count 6 concludes (as does, in substance, count 2) by specifying or particularizing the negligence of the defendant alleged as the proximate cause of his injury, as follows:
"Plaintiff avers that the damage received was caused by the negligence of defendant's agent or servants in charge of said train by running at such high rate of speed."
It is thus seen that the sole negligence specified is the high rate of speed at which said passenger train was running at the time of the injury. Under our authorities, when the plaintiff, as here, has specified the particular act of negligence upon which he relies, he is confined to the negligence specified and cannot recover in such event upon negligence not specified. L. & N. Ry. Co. v. Lowe, 158 Ala. 391, 48 So. 99. Upon the conclusion of the evidence for the plaintiff, the court below gave the general affirmative charge in writing in behalf of the defendant, at its request; and this presents the question of prime importance on this appeal.
The plaintiff was a hand on a repair train of defendant company, and the crew of which he was a member was engaged in ditching on a right of way of the defendant railroad on the east side of Alta station. The repair train was ordered to go upon the side track to let passenger train No. 11 go by. The repair train was side-tracked for this purpose, and the plaintiff, while his crew was waiting, went from the repair train across the main line and lay down some 10 or 12 feet from the end of the cross-ties. This he did voluntarily and without any direction to that effect, as we construe the testimony. As the passenger train came by, a piece of coal fell from the tender of the engine, striking the plaintiff in the face, and causing the injuries enumerated in his testimony. There was evidence that some coal fell from each side of the tender, and that the train was running fast; one witness estimating the speed at 40 miles an hour. There was nothing in the evidence tending to show that there was any occasion at this particular place for the passenger train to run at a decreased speed.
In the case of N.C. & St. L. Ry. v. Hembree, 85 Ala. 481, 5 So. 173, the court, through Stone, C.J., said:
Speaking to the same effect it was said in the case of Reading, etc., Ry. v. Ritchie, 102 Pa. 425 (19 A & E.R.R.Cas. 267):
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