Holmes v. Birmingham Southern R. Co.

• Decision Date: 16 June 1904
• Citation: 37 So. 338,140 Ala. 208
• Parties: HOLMES v. BIRMINGHAM SOUTHERN R. CO.
• Court: Alabama Supreme Court

37 So. 338

140 Ala. 208

HOLMES v. BIRMINGHAM SOUTHERN R. CO.

Supreme Court of Alabama

June 16, 1904

Appeal from Circuit Court, Jefferson County.

Action by Peter Holmes, by his next friend, against the Birmingham Southern Railroad Company, for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed.

Tyson and Sharpe, JJ., dissenting.

This action was brought by the appellant, Peter Holmes, by his next friend, against the Birmingham Southern Railroad Company, to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant or its employés. The substance of the several counts of the complaint is sufficiently shown in the opinion. The defendant pleaded the general issue and several special pleas. Among the special pleas were the following: "(4) Further answering each count of said complaint as amended, the defendant says that plaintiff is not entitled to recover in said action, because defendant says that after the committing of the said grievances as aforesaid, and before the bringing of this suit by the said plaintiff against this defendant, on, to wit, the 9th day of April, 1900, the defendant paid to the said plaintiff the sum of thirty dollars for and in full satisfaction and discharge of the said grievances in said declaration mentioned, which said sum of thirty dollars he, the said plaintiff, then and there accepted and received of and from the defendant in full satisfaction and discharge of said grievances, being at the time twenty-one years of age or over. (5) Further answering each count of said complaint as amended, defendant says that if plaintiff was injured by the negligence of any person, it was the negligence of a fellow servant of plaintiff, and not the defendant; wherefore this defendant says that plaintiff cannot recover in his said action." Upon the introduction of all the evidence, the court, at the request of the defendant, gave the general affirmative charge in its favor, to the giving of which charge the plaintiff duly excepted. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the giving of the general affirmative charge requested by the defendant.

J. A Estes and W. K. Smith, for appellant.

A. G. &amp E. D. Smith, for appellee.

HARALSON J.

The complaint consists of 14 counts. The 1st, 2d, 3d, 7th, 8th 9th and 14th, count upon the simple negligence of the defendant; and the 10th, 11th, 12th and 13th, count upon the wantonness of defendant in inflicting the injury.

There were demurrers interposed to the first 12 counts, but these do not appear to have been acted upon. When counts 13 and 14 were added by amendment, defendant demurred to each of them, and these do not appear to have been passed on. The defendant filed pleas to each count of the complaint, taking issue thereon, and pleaded specially, to counts 13 and 14, setting up the contributory negligence of the plaintiff, which pleas were demurred to, and the demurrers were sustained. It thus appears, there was no plea of contributory negligence in the case at all, and it was tried on each of the counts under the plea of the general issue, and on issue joined on special pleas 4 and 5.

The counts were not drawn under section 1749 of the Code of 1896, known as the "Employer's Liability Act," for injury to the plaintiff by defendant for the negligence of a fellow servant of the plaintiff. The plaintiff was not in the employment of the defendant company, and it is not so alleged. This would have been necessary to sustain the suit under that act. G. P. R. R. Co. v. Propst, 85 Ala. 203, 4 So. 711; Elliott on Railroads, § 134.

The plaintiff, as was averred, (and shown by the tendencies of plaintiff's evidence,) was in the employment of the Tennessee Coal, Iron & Railroad Company, another and distinct company from defendant; that the defendant ran its cars to and from a stockhouse of the former company, for the purpose of their unloading; that it was the agreement and rule between the two, that when defendant delivered a car or train load of coke to the other company at said stockhouse, the cars, when unloaded, were to be swept out and cleaned by the said Tennessee Coal, Iron & Railroad Company, by one of its servants who had to ride to the place on one of defendant's cars; that it was the duty of the defendant to convey such servant on its cars to the place of unloading where it became the duty of such servant to sweep out and clean said cars when unloaded; and in carrying such servant, it was the duty of defendant to do so in the exercise of due care; that one of the Tennessee Coal, Iron & Railroad Company's servants, who was in the exercise of superintendence entrusted to him over the plaintiff and other hands, ordered and directed plaintiff, as was customary to be done, to go on the cars of defendant for the purposes aforesaid; that the servant of defendant knew that it was the duty of plaintiff when so ordered, to get upon the defendant's cars to go to said stockhouse for the purpose stated, and they stopped the cars on the occasion of this accident, for the plaintiff to get on; that in the act of boarding the cars, he caught hold of one of them, and was in the act of ascending the same, when the train, by signal to the...