King v. Woodstock Iron Co.

• Decision Date: 01 November 1904
• Citation: 143 Ala. 632,42 So. 27
• Parties: KING v. WOODSTOCK IRON CO.
• Court: Alabama Supreme Court

42 So. 27

143 Ala. 632

KING v. WOODSTOCK IRON CO.

Supreme Court of Alabama

November 1904

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

"To be officially reported."

Action by Frank Martin as administrator of Sydney Olive, deceased against the Woodstock Iron Company, for the death of plaintiff's intestate, and revived in the name of J. H King as administrator. From a judgment for defendant plaintiff appeals. Reversed and remanded.

There are three counts in the complaint. The first count charges that Charley Fipps, as yard foreman, and who had superintendence intrusted to him, negligently ordered plaintiff's intestate to get on one of the seven gondola cars as brakeman and stop the same after they had entered the switch track, and that the said gondola cars had started down the incline and that Olive was unable to stop said cars before they had collided with the freight cars standing on the switch track, and, by reason of the collision, Olive was killed; and that plaintiff's intestate was killed by reason of the negligence of said Fipps in ordering him to serve as brakeman on said cars without informing him of the dangers and perils incident thereto and knowing that he was a minor of about 18 years of age and without experience as a brakeman and that his death resulted from his having conformed to the orders of the said Fipps. The gist of the second count of the complaint is that Fipps negligently allowed a freight car to remain on said switch track, and that, in riding the seven gondola cars down the incline plaintiff's intestate was unable to stop them before a collision, although he seasonably applied the brakes. The third count of the complaint avers that the plaintiff's intestate was killed by reason of the negligence of said James Wright, as engineer, in pulling, forcing, or propelling said gondola cars, when they left the stockhouse, with such great speed and momentum that plaintiff's intestate could not stop the same by the application of brakes before they collided with said freight car on the side track. Defendant pleaded the general issue and contributory negligence, the latter in four pleas. The plaintiff demurred to the third fourth and fifth pleas of contributory negligence, which demurrers the court overruled. The evidence was to the effect that the defendant was, at that time, engaged in the manufacture of iron ore into pig iron, and, as a part of its plant, it had a stockhouse, the floor of which was about 18 or 20 feet above the level of the ground, and cars were run into this stockhouse up an incline railway which connected with the switch track. Plaintiff's intestate began to work for the defendant on the day before the accident to him as brakeman, and it was a part of his duty as such brakeman to ride the empty cars from the stockhouse down the incline on to the switch track. The switch engine would start the empty cars down the incline, then uncouple, run down the incline ahead of the cars, and run on one side track, and the empty cars with the brakeman would follow behind, going on another side track, the brakeman applying brakes as the cars went on down so as to stop them within about 200 or 300 yards of the stockhouse. One Charley Fipps was yard foreman in charge of this work and James Wright was the engineer running the switch engine. On the morning of the accident the plaintiff's intestate...