Gulf States Steel Co. v. Carpenter

• Decision Date: 02 December 1920
• Docket Number: 7 Div. 80
• Citation: 205 Ala. 162,87 So. 580
• Parties: GULF STATES STEEL CO. v. CARPENTER.
• Court: Alabama Supreme Court

87 So. 580

205 Ala. 162

GULF STATES STEEL CO. v. CARPENTER.

7 Div. 80

Supreme Court of Alabama

December 2, 1920

Rehearing Denied Jan. 6, 1921

Appeal from Circuit Court, Etowah County; O.A. Steel, Judge.

Action by Charles F. Carpenter against the Gulf States Steel Company for damages for injuries suffered while in its employment. Judgment for plaintiff, and defendant appeals. Affirmed.

Sayre J., dissenting.

p>Page Hood & Murphree, of Gadsden, for appellant.

P.E Culli and Victor Vance, both of Gadsden, for appellee.

GARDNER J.

The first trial of this cause was had upon counts 3, 4, and 5. Upon appeal to this court the judgment recovered by the plaintiff was reversed (Gulf States Steel Co. v Carpenter, 203 Ala. 331, 83 So. 55), and the second trial was had upon counts 3 and 5, with added counts 9 and 11, the plea of general issue thereon, and pleas of contributory negligence--again resulting in a verdict for the plaintiff, from which the defendant prosecutes this appeal.

Counts 3 and 5 rested upon the fifth subdivision of the Employers' Liability Act (Code 1907, § 3910), which provides for liability of employer when the injury is caused by reason of the negligence of any person in the service or employment of the master or employer who has charge or control of any signal points, locomotive, engine, or train upon a railway. Count 3, after setting up that the plaintiff was in the service and employment of the defendant at the time he received his injury, and in the discharge of his duties as an engineer upon a locomotive on said defendant's railroad track, alleged that plaintiff's engine collided with another engine on a railway track leading off from the track on which plaintiff was operating his engine, and as a consequence plaintiff suffered the injuries enumerated. The count then concludes:

"Plaintiff avers that said injuries and damages were proximately caused by reason of the negligence of one Shorty Jones, a person in the employment of the defendant, who had charge of the locomotive or engine upon a railway, in that the said Shorty Jones negligently allowed said engine or locomotive to stand on the switch or track leading off from the railway on which plaintiff was running or backing said locomotive too near to the track on which plaintiff was so running or backing said locomotive as to cause said collision."

Count 5 was substantially the same as count 3, with the added averment that the locomotive left standing too near the track on which plaintiff was operating his engine was so left without a headlight, or any notice to the plaintiff that the engine was within striking distance of plaintiff's engine, and the further difference that the name of Will Musket was substituted for that of Shorty Jones.

We are of the opinion that the argument against the sufficiency of these counts is without merit. While pleadings are to be construed most strongly against the pleader, yet this court has repeatedly held that the language used must be given reasonable construction, and in the light of this rule it will appear that these counts meet all requirements of good pleading, and were not subject to the demurrer interposed. A.G.S.R.R. Co. v. Finn, 199 Ala. 177, 74 So. 246; M. & O.R.R. Co. v. George, 94 Ala. 199, 10 So. 145; Republic Iron & Steel Co. v. Williams, 168 Ala. 612, 53 So. 76. We find nothing in the case of L. & N.R.R. Co. v. Bouldin, 110 Ala. 185, 20 So. 325, to the contrary of this conclusion; nor do we think anything appearing in Brown, Adm'r, v. L. & N.R.R. Co., 111 Ala. 275, 19 So. 1001, at all tends to disclose any insufficiency in count 5 as contended by counsel.

Count 9 is rested upon subdivision 2 of the Employers' Liability Act, and we are of the opinion that the concluding paragraph of this count need but to be quoted to demonstrate its sufficiency:

"Plaintiff avers that said damages and injuries proximately resulted from the negligence of J.R. McCartney, a person in the service or employment of the defendant, and who had superintendence intrusted to him, whilst in the exercise of such superintendence, in this, that said J.R. McCartney as such superintendent knowing that another locomotive was standing so near the track on which plaintiff was operating his locomotive or engine that if the plaintiff tried to pass the point where such locomotive was standing that a collision would necessarily follow he the said J.R. McCartney negligently ordered or directed the plaintiff with his crew to carry, to wit, five loaded cars down the track on which plaintiff was so operating his engine or locomotive and place them on some other track which would necessarily require the plaintiff to pass the point where such other locomotive was standing, without notice or warning of the dangerous proximity of such other locomotive, and that plaintiff in carrying out said orders or directions collided with said locomotive and thereby was injured."

Count 11 was based upon subdivision 3 of the Employers' Liability Act, the negligent order being charged to the said J.R. McCartney as in count 9. This count did not charge that the said McCartney negligently gave an order, but alleged that at the time he gave the order he "knew, or ought to have known, that at the time said orders were given to the plaintiff it would be necessary for plaintiff to pass the point," etc.

The most strenuous insistence of counsel for appellant as to the insufficiency of this count relates to the foregoing language, wherein it is charged in the alternative that the said McCartney "knew or ought to have known," and reliance is had upon the holding of this court in Alabama Co. v. Hammond, 156 Ala. 253, 47 So. 248, and Republic Iron & Steel Co. v. Williams, supra. Should it be conceded for the purposes of this case only that the count was subject to demurrer under these authorities, yet we are of the opinion that this defect was not sufficiently pointed out by the assignments of demurrer which are found on page 14 of the record. While it is true that in law of pleading the sufficiency of a count must be tested by its weakest alternative averment, yet, under the provisions of our statute (section 6340, Code 1907), no objection can be taken or allowed which is not distinctly stated in the demurrer, this for the obvious reason that the pleader as well as the court might be informed as to the specific objection so it may be met by amendment if so desired.

The grounds of demurrer assigned to this count are five in number, and have been very carefully examined in consultation, and we are of the opinion that none of these assignments come within the rule, and that therefore the court cannot be put in error for overruling the demurrer thereto.

Moreover, for reasons hereinafter to be stated, even should it have been otherwise, we do not think a reversal of the cause could have been rested upon the action of the court in overruling the demurrer to this count.

Plaintiff was employed by the defendant to operate one of its dinkey engines in the yard adjacent to the defendant's open-hearth steel furnace. One Shorty Jones was employed in the operation of another dinkey engine in these yards. It appears that plaintiff's engine was to be operated on the tracks of the "open hearth yard," which was elevated some feet above the ground. For a better understanding of the situation we can do no better than to quote extracts from the statement of facts in the opinion on former appeal, as follows:

"Plaintiff and Jones were both employed to operate dinkey engines in the yard adjacent to defendant's open-hearth steel furnaces. A main line ran east and west through the center, approximately, of the yard. To the north, and along by the furnaces, a parallel track, called the 'open-hearth track,' ran. A switch track connected the main line with the open-hearth track. At a point opposite the west end of the furnaces, which stood in an east and west line, another switch track connected the main line with a track called No. 3, which was located to the south of the main line. Jones' business with his engine was to bring cars, laden with materials for the furnaces, over the main line from the 'field,' which lay to the west, up to the yard, and to take empty cars back from the yard to the field. Plaintiff's business with his engine was to shift loaded cars from the yard to which they had been delivered by Jones over to the open-hearth track, from which their contents were fed to the furnaces, and to return empties to the yard whence they were taken by Jones to the field. When not busy, the place for Jones' engine was at a point on the main line known as 'the spot.' *** A short time before the accident in which plaintiff received his injuries, he had moved some empty cars, five or six, from the open-hearth track over to the main line and from the main line had 'kicked' them over to track No. 3. These cars stopped or were stopped so near the main line that an engine attached to them would not stand clear of the main line."

A few minutes before the accident plaintiff's engine was standing on the main line at the coal chute, and Jones' engine was standing at the "spot," which was 50 yards to the west and down the incline. Plaintiff in obedience to orders then moved his engine east for the purpose of coupling five loaded cars to be transferred to the open-hearth track. At the time plaintiff left with his engine for the purposes above stated, Jones brought his engine to the switch and coupled it to the empty cars on track No. 3 and thus his engine stood partly on No. 3 and partly on the main line. Plaintiff, after coupling the five loaded cars, moved his engine west, in obedience to orders, for the purpose of transferring them to the open-hearth track. To accomplish this purpose it...