Illinois Cent. R. Co. v. Lowery

• Decision Date: 04 December 1913
• Citation: 63 So. 952,184 Ala. 443
• Parties: ILLINOIS CENT. R. CO. v. LOWERY.
• Court: Alabama Supreme Court

63 So. 952

184 Ala. 443

ILLINOIS CENT. R. CO. v. LOWERY.

Supreme Court of Alabama

December 4, 1913

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by M.J. Lowery against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Davis &amp Fite, of Jasper, for appellant.

Ray &amp Cooner, of Jasper, for appellee.

SOMERVILLE J.

The complaint avers that plaintiff, while in the service of defendant, and while discharging the duties of his employment by assisting in the unloading of steel rails from one of defendant's cars, was injured by the negligent dropping upon him of a lever operated by defendant, together with the heavy steel rail which it was carrying from the car at the time. The first count, upon which alone the case was tried is framed under the first subdivision of the Employers' Liability Act (Code 1907, § 3910), and the injury complained of is alleged to be the proximate result of a defect in the brake which should have controlled the descent of the lever.

Defendant filed a number of pleas setting up contributory negligence. Plea 3 alleges simply that the plaintiff negligently went and was under the steel rail while it was lowered.

Pleas 4 and 5 allege, in substance, that plaintiff's injury was the proximate result of his negligence in placing himself under the lever or boom rail while adjusting the rails already transferred from the car to the pile, instead of waiting, as it was his duty to do, until the lever had been removed from thereabove.

Plea 9 alleges that there was a safe way for plaintiff to do the work, viz., by waiting until the steel rail was removed from over the place where he was working, and that there was also an unsafe and dangerous way to do it, viz., by undertaking it before the removal of the superincumbent rail, and plaintiff negligently chose the dangerous way.

Plaintiff's demurrers to these pleas, which were sustained by the trial court, challenge the sufficiency of the facts averred to show contributory negligence.

Pleas of contributory negligence must of course state facts and not mere conclusions.

Plea 3 radically disregarded this requirement. Pleas 4 and 5 and 9 are deficient in failing to aver that plaintiff had knowledge of the danger, or that such danger was apparent or obvious to ordinary observation. T.C.I. & R. Co. v. Herndon, 100 Ala. 451, 14 So. 287; Tallassee Falls Co. v. Moore, 158 Ala. 356, 48 So. 593.

Plea 9, as amended, was not subject to objection on this ground, and the demurrers thereto were overruled.

The elimination of counts 2, 3, and 4 of the complaint by an affirmative instruction thereon for defendant renders unnecessary any consideration of rulings on special pleas appropriate to those counts.

We find no error injurious to appellant with respect to the pleadings.

Defendant's offer to show that its foreman, King, frequently instructed "some of the men, or the gang in general," to stay from under the lever and rail, and, further, that he was giving such instruction "all along during the time the plaintiff was at work,"were properly rejected, in the absence of any showing that this was done in the presence or hearing of plaintiff. Whether plaintiff heard these particular instructions to others, or the general instructions to the gang, would have been a matter of pure speculation and not of legitimate inference, under the evidence then before the court.

It was not material on the question of damages whether plaintiff was working by the day, or otherwise, and proof thereof was not improperly rejected.

Against the seasonable objection of defendant, one of plaintiff's witnesses was allowed to...