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

• Citation: 13 So. 308,98 Ala. 239
• Court: Supreme Court of Alabama
• Decision Date: 25 May 1893
• Parties: HIGHLAND AVE. & BELT R. CO. v. DUSENBERRY.

13 So. 308

98 Ala. 239

HIGHLAND AVE. & BELT R. CO. v. DUSENBERRY.

Supreme Court of Alabama

May 25, 1893

Appeal from city court of Birmingham.

Action by H. F. Dusenberry, administrator of the estate of William Johnson, deceased, against the Highland Avenue & Belt Railroad Company for the death of plaintiff's intestate caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

The first count of the complaint is stated in the opinion. The second count, after alleging substantially the same facts as stated in the first count, further alleged "that while he was so riding and engaged in the line of his employment in the rear of the hand car on which plaintiff's intestate was, said car being run at a high and reckless rate of speed and in close and reckless proximity to the car in front, and said rear car being under the management and control of the party or parties moving or operating the same, plaintiff avers that on account of the negligence of the party or parties, namely, Jim Goldsby, Neal Jackson, Buster Cross, and Claib Coleman, operating or moving said hand car in the rear the same ran into or collided with the car in front, throwing or knocking plaintiff's intestate between the cars, and so injuring him that he died." The third count, after alleging the same facts, continues: "While he was so riding and engaged in the line of his employment, another hand car was being run and moved over and along said line of road, in the rear of the hand car on which plaintiff's intestate was, and said car was so carelessly and negligently run that the same ran into or collided with the front car knocking or throwing plaintiff's intestate between the cars, and so injuring, mangling, and bruising him that he died on the day and year aforesaid, as a result of said injuries; and plaintiff avers that said injuries were caused by reason of the negligence of some person or persons, namely, Jim Goldsby, Neal Jackson, Buster Cross, and Claib Coleman, in the service or employment of the defendant, who had the superintendence of the moving or running said hand car in the rear aforesaid, intrusted to him or them at the time of said injuries, and whilst in the exercise of such superintendence; hence this suit."

Alex. T. London, for appellant.

Whittaker & Whittaker, for appellee.

HEAD J.

Action for wrongful injury causing death. The defendant demurred to the first, second, and third counts of the complaint interposing to each count, among others, the following ground of demurrer: "That it does not appear from said count that the injuries complained...