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

• Citation: 120 Ala. 535,24 So. 955
• Court: Alabama Supreme Court
• Decision Date: 02 December 1898
• Parties: HIGHLAND AVE. & B. R. CO. v. MILLER. [1]

24 So. 955

120 Ala. 535

HIGHLAND AVE. & B. R. CO. v. MILLER. ^[1]

Supreme Court of Alabama

December 2, 1898

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

Action by Charles Miller against the Highland Avenue & Belt Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

This action was brought for the recovery of damages for personal injuries alleged to have been sustained by the plaintiff while he was in the employment of the defendant as a brakeman. The complaint contained three counts. The court gave the general affirmative charge for the defendant as to the second count. The substance of the allegations of negligence in the first count, as amended, and in the third count, are sufficiently stated in the opinion. To the first count, as amended, the defendant demurred upon the following grounds: (1) The defendant assigns separately each of the grounds of demurrer heretofore assigned to the first count of the original complaint; (2) for further ground, that said count, as amended, is uncertain and indefinite, in this: that it does not specify or indicate in what the alleged defect consisted; (3) that the means and appliances for controlling the motion of the engine would comprehend and embrace all parts thereof, and defendant is not informed in what the defect consisted; (4) that although the jerk or shock may have been sudden or violent, and although it may have been caused by a defect in the means or appliances for controlling the motion of the engine, it is not alleged that the jerk or shock was unusual or more violent than such as are incident to the operation of well-conducted railroads; (5) that by said count the defendant is not informed whether the alleged injuries were caused by a jerk or shock, but the same is alleged in the alternative; (6) that it is alleged in the alternative that the said means and appliances were worn or broken, but defendant is not informed in what the defect consisted. To the third count the defendant demurred upon the following grounds: (1) Said count is incomplete, indefinite and uncertain; (2) that the sudden and violent jerking of a car and engine in the operation of a railroad does not constitute negligence of which plaintiff can complain; (3) that the sudden and violent shocking of a car and engine in the operation of a railroad does not constitute negligence of which plaintiff can complain; (4) the alleged negligence is averred in the alternative; (5) the sudden and violent jerking of cars and engines is naturally incident to the operation of a railroad; (6) that violent jerks and shocks of engines and cars are incident to the operation of railroads and where risks of the employment of plaintiff, which he assumed on entering into the service of defendant; (7) it is not alleged in said count that the shock or jerk alleged was more violent than such as are incident to the operation of well-conducted railroads. These demurrers were overruled, to each of which rulings the defendant duly excepted. The defendant then filed the following pleas: "(1) That it is not guilty of the wrongs and injuries in said complaint alleged. (2) It denies each and every allegation of the complaint. (3) Defendant further says that plaintiff was guilty of negligence which contributed proximately to the injuries complained of, in this: that, after undertaking to turn loose or let off the brake of the car upon which he was riding at the time of said accident, he carelessly and negligently retained his hold on the brake wheel, in consequence of which he was thrown violently to the ground and injured, as aforesaid. (4) For further answer to the first and second counts of the complaint, the defendant says that the alleged defects in the ways, works, plant, means and appliances of this defendant were known to the plaintiff before the happening of said injury, and he continued with such knowledge in the employment of defendant for a long time, after knowledge of said alleged defects." To the fourth plea the plaintiff demurred upon the following grounds: "(1) The said plea fails to aver or show that said defects were known to plaintiff for an unreasonable time for him to have remained in defendant's employ after such knowledge; (2) said plea fails to aver or show any facts from which it would be presumed that plaintiff had assumed the risk of injury from said defect, or that plaintiff was guilty of negligence in remaining in defendant's employ after said knowledge." This demurrer was sustained, and to this ruling the defendant duly excepted. The facts of the case, as shown by the evidence, are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges: "(1) If the jury believe from the evidence that the plaintiff was thrown from the car by a jerk or shock caused by the engineer as charged in the complaint, and if they further believe from the evidence that such jerk or shock was unnecessary under the circumstances and obviously dangerous to the plaintiff, this would be evidence of negligence on the part of the engineer. (2) If the jury believe the evidence, the plaintiff did not assume the risk of any negligence of the engineer in the manner of moving the train, if the jury believe from the evidence there was such negligence." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges, requested by it: "(1) If the jury believe all the evidence, they should find a verdict for the defendant. (2) If the jury believe all the evidence, they should find a verdict for the defendant on the first count." "(4) If the jury believe all the evidence they should find a verdict for the defendant on the third count." "(9) If the jury believe from the evidence that the plaintiff knew of the defective condition of the brakes on the engine, and continued in the employment of the defendant with such notice, then he cannot recover because of such defects, provided said defects had existed for a long enough time to be remedied." "(11) If the jury believe from the evidence that the plaintiff had loosened the brake before any signal was given to back, and that he was then on top of the car, and that there was no occasion for plaintiff to get on the step where the brake dog was located, and this step was a more dangerous place than the top of the car, and the plaintiff was thrown from the step by reason of his being voluntarily on this step, then he would not be entitled to recover. (12) If the jury believe from the evidence that the plaintiff was on the top of the car when it stopped at the switch, and that this was a safer place than the...