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

• Decision Date: 24 November 1892
• Citation: 97 Ala. 240,12 So. 88
• Parties: KANSAS CITY, M. & B. R. CO. v. BURTON.
• Court: Alabama Supreme Court

12 So. 88

97 Ala. 240

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

Supreme Court of Alabama

November 24, 1892

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

Action by J. W. Burton, by his next friend, against the Kansas City Memphis & Birmingham Railroad Company to recover damages for personal injuries caused by defendant's negligence. From a judgment entered on a verdict in favor of plaintiff defendant appeals. Reversed.

The complaint, as amended, contained eight counts. There were many demurrers interposed to the counts, the grounds of which, and the rulings thereon, are sufficiently stated in the opinion. The facts are substantially stated in the opinion. On the examination of Ben Freeman, the foreman of the switch engine when plaintiff was injured, the plaintiff asked said foreman the following question; "How much did they give you at the time Burton was hurt?" And upon his answering this question the plaintiff then asked the following: "How much now?" The defendant separately objected to each of these questions, and reserved separate exceptions to the overruling of his objections, and likewise excepted to the court's overruling each of his motions to exclude each of the answers thereto. On the examination of one L. G. Parsons, who testified that he was the yard master of the defendant at the time of the injury to Burton, he further testified that there were no "clear posts" where Burton got hurt, at the time he was hurt. He further testified that there were probably three, four, or five clear posts in other portions of the yard. The defendant moved to exclude the testimony of the witness to there being other clear posts in the yard, and duly excepted to the court's overruling these motions. There were requested by the defendant 61 charges, which the court refused to give, and to the refusal of each of which the defendant separately excepted; but it is not deemed necessary, under the opinion of this case, to set these charges out in detail. Among the number to which special reference is made in the opinion are the following: "(19) If the jury find that the placing of the refrigerator car in the position in which it was placed was negligence on defendant's part, and further find that said car was so placed by defendant's foreman Ben Freeman, and if the jury further believe that said Ben Freeman, in so placing said car, was performing manual labor as a common switchman, then he was not a person intrusted with a superintendence, in the exercise of such superintendence, and defendant would not be liable for his negligence in such act." "(54) If you believe that the defendant's foreman Ben Freeman, when he cut loose the engine from the refrigerator car on the cold-storage track, at the place in which it was at the time of plaintiff's injury, was doing the work of the switchman Burnett, then, in doing said act, said Freeman was a fellow servant with the plaintiff, and, even if you believe he performed it negligently, you are not authorized to charge the defendant with his negligence." There was judgment for the plaintiff for the sum of $4,250, and the defendant brings this appeal, and assigns as error the various rulings of the lower court.

Hewitt, Walker & Porter and Wallace Pratt, for appellant.

J. M. McMaster and Brooks & Brooks, for appellee.

McCLELLAN J.

In respect of the duty of the defendant, the railroad company, to exercise care and diligence for the protection and safety of the plaintiff, Burton, the averments of the several counts of the complaint are that the defendant was a railroad company, and engaged, at the time and place of the casualty complained of, in the operation of a railroad; that the plaintiff was then in the service of the defendant, in the capacity of a switchman; and that, while in the actual discharge of his duties as such switchman, he received the injuries, to recover damages for the infliction of which this action is prosecuted. These averments set forth a relationship between the defendant and the plaintiff at the moment of receiving the injuries, from which arises a duty on the part of the former to do nothing, which an ordinarily prudent and careful man would not do, tending to imperil the latter's safety, and to omit no action in conservation thereof which the dictates of ordinary care, prudence, and diligence would suggest, and were, we think, sufficient statements of the duty which the defendant owed the plaintiff in the premises. The special objection urged upon our attention, which proceeds on the idea that the allegation that plaintiff was at the time in question in the active discharge of the duties incident to his employment is a conclusion of the pleader, and not the statement of a fact, cannot avail the demurrant, under the decisions of this court. This is apparent from the case relied on by appellant, where the complaint was held defective in that it failed to disclose simply the relationship between the parties, as that of carrier and passenger, or employer and employe; the necessary implication being that the complaint would have been unobjectionable had it averred that plaintiff was defendant's servant, and was injured while in the performance of his duties as such, (Railway Co. v. Chewning, 93 Ala. 24, 9 South. Rep. 458;) and to hold otherwise now would be to go far towards overturning the general principle frequently announced here, to the effect that the averments required in this class of actions are but little more than the conclusions of the pleader, leaving the facts which support the conclusions to be brought forward in the evidence, (Railway Co. v. Davis, 92 Ala. 300, 9 South. Rep. 252, and cases there cited; Railway Co. v. Hawkins, 92 Ala. 241, 9 South. Rep. 271.)

2. The complaint is intended to state a cause of action within subdivisions 2 and 5 of section 2590 of the Code. It is insisted by the demurrers that the facts averred fail to bring the case within subsection 2; and the argument proceeds on the theories (1) that there can be no such thing as the superintendence contemplated by that clause, with reference to a car or track or other inanimate object, but only of men; and (2) that the dangerous proximity of a car or other object to the track of a railway constitutes a defect in the "ways" of the defendant, under subsection 1 of section 2590, for injuries resulting from which there could be no recovery except on a complaint stating a case under that clause, and the present does not state such a case. We might concede the first proposition advanced for appellant in this connection, - that superintendence of a thing, merely, (not men,) is not contemplated by subsection 2,-without committing ourselves thereby to the conclusion sought to be enforced by the demurrer. The superintendence averred has relation to more than the track of the defendant, and the car left dangerously close thereto. The averment is that the yard master, by whom we understand to be intended a person charged with the control of the tracks and cars in the yard of a railroad, was intrusted with superintendence in the placing and position of cars in the yard, and hence, necessarily and obviously, the performance of his duties involved the movement of cars, and, of consequence, the control and direction of men and appliances necessary to such movement as was requisite to place the cars in safe and proper positions. The essence of the averment, therefore, is that the yard master had intrusted to him superintendence of the men and appliances used in the placing of this particular car, and that, while in the exercise of that superintendence, he negligently permitted and suffered the car to be placed so near to an adjacent track, with a passing train on which plaintiff was discharging his duties as switchman, as that it collided with the person of the plaintiff, and produced the injuries complained of. We are unable to agree with counsel that "the superintendence which comes within the contemplation of the statute shall be a superintendence over the person who complains of the negligence of the person intrusted with it." The remedy for negligence of superior in the control of inferior employes, whereby injury results to the latter, is given by subsection 3. Under subsection 2, it is manifest, we think, the liability of the defendant is in no sense dependent upon the relations existing in the service between the negligent and the injured person. If the former has superintendence intrusted to him, and is negligent in the exercise of it, to the injury of any "servant or employe in the service or business of the master," whatever be the relation inter se of the servants, the master is made liable therefor, by the very terms of the statute. If a yard master charged with the duty of keeping the tracks clear should negligently obstruct a track, and in consequence the president of the company should be injured in the service of the employer, the corporation, it cannot be doubted that the latter would have to respond in damages.

3. As to the other proposition,-that the proximity of the car to the track on which defendant's train was being operated known as the "Lead Track," constituted a defect in said track,-the argument is clearly at fault. As is well known, the act of February 12, 1885, "To define the liabilities of employers of workmen for injuries received by the workmen while in the service of the employer," now embodied, with some modifications, intended, perhaps, to broaden its operation, in sections 2590 and 2591 of the Code, was substantially copied from the English "Employers' Liability Act" of 43 & 44 Vict. That act has been construed by the queen's bench division and the court of appeals of England, in respect of what constitutes a "defect in the condition of the ways, works,...