Kansas City, M. & B.R. Co. v. Flippo

• Citation: 138 Ala. 487,35 So. 457
• Court: Supreme Court of Alabama
• Decision Date: 25 November 1903
• Parties: KANSAS CITY, M. & B. R. CO. v. FLIPPO.

35 So. 457

138 Ala. 487

KANSAS CITY, M. & B. R. CO. v. FLIPPO.

Supreme Court of Alabama

November 25, 1903

Appeal from Law and Equity Court, Walker County; Peyton Norvell Judge.

Action by George Flippo against the Kansas City, Memphis &amp Birmingham Railroad Company for injury received by plaintiff while in defendant's employ as a brakeman. Judgment for plaintiff. Defendant appeals. Reversed.

The complaint contained six counts. The prefatory averments of each of the counts of the complaint were substantially the same, and averred the fact that the defendant was a common carrier, and engaged in such business at the time of the accident, and that the plaintiff was in the employment of the defendant as a brakeman. The averments of negligence in each of the counts were as follows: "(1) On said date aforesaid defendant hauled or used on its line a car used in moving interstate traffic that was not equipped with couplers coupling automatically by impact, and that plaintiff, while engaged in making a coupling with said car, as it was his duty to do, had his hand badly mangled and bruised, and lost one finger on said hand, and suffered great mental and physical pain and loss of time and expense for medicine and nursing. Plaintiff alleges that his injuries as aforesaid were caused by reason of the defendant using said car, which could not be automatically coupled by impact, to his damage in the sum aforesaid. (2) On said date aforesaid defendant hauled or used on its line a car used in moving interstate traffic, and it became plaintiff's duty to couple said car to an engine, and plaintiff alleges that said car was not equipped with couplers coupling automatically by impact that could be so coupled with said engine, and in making said coupling the plaintiff's hand was badly mangled and bruised, and he lost one finger on said hand, and he suffered great mental and physical pain and loss of time. Plaintiff alleges that his injuries as aforesaid were caused by the defendant using said car in moving interstate traffic, that could not be automatically coupled by impact with said engine, to his damage in the sum aforesaid. (3) On said date the defendant used a car in interstate commerce that was not provided with secure grab-irons or handholds in the end of said car, and it became the duty of plaintiff to make a coupling with said car, and in making said coupling the plaintiff lost balance, and his hand was caught between the couplings, and was badly mangled and bruised and dismembered and he suffered great mental and physical pain and loss of time. Plaintiff alleges that his injuries were caused by reason of not having secure grabirons or handholds in the end of said car, to his great damage as aforesaid. (4) On said date aforesaid the defendant used on its track in Walker county, Alabama, a freight car used in interstate traffic that did not have drawbars of the standard height, and the plaintiff, while engaged in making the coupling with said car, as it was his duty to do, his hand was badly torn, cut or bruised, and had one finger cut off, and was made sore and sick, and suffered great mental and physical pain, and was rendered for a long time unable to work and earn money, and was rendered permanently less able to work and earn money and was disfigured for life, and was put to great inconvenience and expense for medicine, medical attention, care, and nursing in and about his efforts to heal and cure his said wounds and injuries. Plaintiff avers that his injuries as aforesaid were caused by reason of the defendant using said freight car, which did not have drawbars of standard height, to his damage in the sum aforesaid. (5) On said date plaintiff was in the services of the defendant at its instance as a brakeman, and as said brakeman it became his duty to couple an engine to a car on the railroad track of defendant at or near Carbon Hill, Ala., and in making said coupling plaintiff's hand was caught between the couplers, whereby plaintiff's hand was badly cut, torn, or bruised, and one finger cut off, and plaintiff was made sore and sick and suffered great mental and physical pain, and was rendered for a long time unable to work and earn money, and was crippled for life, and was put to great inconvenience and expense for medicine, medical attention, care, and nursing in or about his efforts to cure and heal his said wounds and injuries. Plaintiff avers that he suffered said injuries and damages by reason and as an approximate consequence of the defect in the condition of the ways, works, machinery, or plant used in or connected with said business of defendant, which defect arose from, or had not been discovered or remedied owing to, the negligence of defendant, or of some person in the services or employment of defendant, and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in a proper condition, namely, the drawhead in the car that plaintiff was coupling to an engine was out of order, defective, or otherwise not proper and sufficient for the purpose. (6) Plaintiff avers that his said injury and damage were caused by reason of the negligence of one William Dice, who was then and there in the service of the defendant, and to whose orders or directions the plaintiff at the time of the injury was bound to conform, and did conform, and his said injuries resulted from his having so conformed. Plaintiff avers that said negligence of the said William Dice consisted in directing the defendant to make the coupling between an engine that had a link and pin coupler to a car which had a drawhead which was defective and out of place, to the plaintiff's damage in the sum of nineteen hundred and ninety-five dollars, wherefore he sues."

The defendant demurred to the complaint as a whole upon the following grounds: (1) Each count of said complaint fails to show any fact of negligence or circumstance which would render the defendant liable. (2) Each count fails to aver or allege any facts of negligence or wrong committed by defendant which proximately contributed to the injury complained of. (3) There is no sufficient allegation of negligence which caused the injury complained of. (4) Each of said counts fails to aver any facts from which can be inferred any defect existing in the box car and engine at the time plaintiff is alleged to have made the said coupling. (5) Each count shows on its face that the alleged danger in attempting to couple the said car and engine was a risk incident to the plaintiff's employment, from which, in resulting in injury, no action arises.

To the first and second counts of the complaint the defendant demurred upon the following grounds: (1) Each of said counts 1 and 2 fails to show how or why it was the duty of the defendant to use cars coupling automatically by impact. To the third and fourth counts of the complaint the defendant demurred upon the following grounds: (1) Each of said counts fails to aver why or in what respect the said grab-irons or handholds were insufficient, or how the same contributed to the injury complained of. (3) Each of said counts 3 and 4 fails to aver how or in what respect the grab-irons or handholds or drawbars contributed to the injury complained of. (2) It is not shown how or in what respect it was the duty of defendant to have grab-irons or handholds of a standard height. (4) Each of said counts fails to aver that the grab-irons or handholds or drawbars attached to the said car were out of order, or unsafe, or unfit to be used by the company in its business. To the fifth count of the complaint the defendant demurred upon the following ground: The same fails to aver the name of the person in the service or employment of defendant to whom was intrusted the duty of seeing that the ways, works, machinery, or plants of the defendant were in proper condition, or that his name could not have been ascertained by reasonable diligence. To the sixth count of the complaint the defendant demurred upon the following grounds: (1) It is not shown that William Dice had authority to direct plaintiff to make the coupling. (2) The alleged defect was open and obvious to the plaintiff, and in attempting to make the coupling of the engine and the car he assumed the risk occasioned by the alleged defect in the drawhead and coupling appliances.

The defendant pleaded the general issue and several special pleas. Among the special pleas filed by the defendant were the following: "(3) And for a further answer to the complaint the defendant says that the plaintiff, well knowing the condition of the car and coupling appliances, voluntarily undertook to couple the engine to the car, and that he thereby assumed the risk of any danger and injuries incident thereto. (4) And for a further answer to the complaint, and each count thereof separately and severally, the defendant says that the plaintiff, well knowing the condition of the coupling appliances and the car, voluntarily undertook to couple the engine to the car, and went in between the car and the engine to couple them together, and was injured, and his said negligence contributed proximately to his alleged injuries."

To the third and fourth pleas the plaintiff demurred upon the following grounds: (1) The said pleas are interposed to the...