Highland Ave. & B.R. Co. v. Dusenberry

• Decision Date: 01 December 1891
• Citation: 94 Ala. 413,10 So. 274
• Court: Alabama Supreme Court
• Parties: HIGHLAND-AVE. & B. R. CO. v. DUSENBERRY.

10 So. 274

94 Ala. 413

HIGHLAND-AVE. & B. R. CO. v. DUSENBERRY.

Supreme Court of Alabama

December 1, 1891

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

Action by H. F. Dusenberry against the Highland-Avenue & Belt Railroad Company for the death of plaintiff's intestate alleged to have been caused by defendant's negligence.Judgment for plaintiff.Defendant appeals.Reversed.

Alex.T. London, for appellant.

Whittaker & Whittaker, for appellee.

WALKER J.

Demurrers to the three counts contained in the original complaint having been sustained, a fourth court was added by amendment.This count avers, in substance, that on the 16th day of November, 1889, the plaintiff's intestate was an employe of the defendant as a section hand on its railroad, and as such employe was rightfully on one of the defendant's hand-cars; and, while he was riding on the same, and engaged in the line of his employment, another hand-car was being run and moved over and along said line of road, each of said cars being under the superintendence and control of the foreman in charge, and running at a high and reckless rate of speed, and in close and rcekless proximity to each other, so that by the carelessness and gross negligence of the foreman in charge in directing or allowing said cars to run at such a high rate of speed, and in such close proximity the one to the other, the same collided or the rear car ran into the front car, throwing or knocking plaintiff's intestate between said cars, and thereby inflicting injuries from which he died.The portion of the complaint just summarized states a cause of action based upon the carelessness and gross negligence of the foreman as the person having the superintendence and control of both hand-cars.But the complaint does not stop here.Immediately following the averments already mentioned there are additional allegations to the effect that said injuries were caused by reason of the negligence of some person or persons in the service or employment of the defendant, who, at the time of said injuries, had the charge or control of the running, moving, or operating of the rear hand-car, and that one or both of said hand-cars were in a defective and worn condition; that the brakes or cogwheels to one or both of said cars were in a bad and defective condition, and that said injuries were caused by reason of the defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the master or employer, and said defect arose from or had not been discovered or remedied owing to the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition; that the defects aforesaid were known to, or could have been known to, the defendant by the exercise of reasonable diligence; and that said injuries were caused by reason of the negligence of some person or persons in the service or employment of the defendant who had the superintendence of the moving of said rear hand-car intrusted to them at the time of said injuries, and while in the exercise of such superintendence.The result of the allegations is that the death of the plaintiff's intestate is in one count successively attributed (1) to the gross negligence of the foreman in charge or control of both hand-cars; (2) to the negligence of some person or persons in charge or control of the running, moving, or operating of the rear hand-car; (3) to the defective and worn condition of one or both of the hand-cars, which defect had arisen from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in its service, who was intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition; and (4) to the negligence of some person or persons in the service or employment of the defendant who had the superintendence of the moving of the rear car, while in the exercise of such superintendence.We do not construe the complaint to charge that the several acts of negligence were concurrent, co-operating causes, and that all of them together contributed to the alleged injury, so that each specification is to be regarded as an integral feature in the description of the mode in which the injury was inflicted.If that construction could be put upon the complaint, the plaintiff would be in the position of having stated his case with unnecessary particularity, and he would not be entitled to recover unless his proof made out the case with equal particularity of description.Smith v. Causey,28 Ala. 655;Railroad Co. v. Johnston,79 Ala. 436;Railroad Co. v. Dickinson,88 Ill. 431;Railroad Co. v. Coulton,86 Ala. 129, 5 South. Rep. 458;1 Greenl. Ev. § 57 et seq.Here the several specifications of negligence are stated as disconnected defaults, and each one of them seems to be put forward as a separate ground of liability, independent of the others.

In Railroad Co. v. Coulton, supra, the injury complained of was attributed solely to the defective condition of the brakes on a train, but it was charged that the defendant was negligent in several ways in reference to the condition of said brakes.The averments in this regard were construed to be cumulative charges of several independent acts of negligence; and, no demurrer to the complaint having been interposed, it was held that a judgment on the...