Lacey-Buek Iron Co. v. Holmes

• Decision Date: 16 December 1909
• Citation: 164 Ala. 96,51 So. 236
• Parties: LACEY-BUEK IRON CO. v. HOLMES.
• Court: Alabama Supreme Court

51 So. 236

164 Ala. 96

LACEY-BUEK IRON CO. v. HOLMES.

Supreme Court of Alabama

December 16, 1909

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by Dora E. Holmes, administratrix, against the Lacey-Buek Iron Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Count 2 of the complaint is as follows: "The plaintiff, Dora E Holmes, as administratrix of the estate of C. R. Holmes deceased, claims of the defendant, Lacey-Buek Iron Company, a corporation, the sum of $10,000 damages, for that heretofore to wit, on the 10th day of April, 1905, the plaintiff's intestate was regularly in the service or employment of the defendant at Trussville, in the county of Jefferson, state of Alabama, as foreman of the crew of men working at the defendant's coal washer, and while her intestate was in the exercise of his employment as such foreman it became his duty to accompany his crew of men and some railroad cars which had been loaded with refuse at the defendant's coal washer to the dump for the purpose of unloading the said cars, and that preparatory to accompanying his crew and the said cars to the dump he boarded one of said cars, which were to be hauled to the dump by the defendant's locomotive on a railroad operated by the defendant; and the plaintiff avers that while her intestate was on said car, in the discharge of his duty, and immediately after the engineer of defendant's locomotive had started said cars on their way to the dump, he was knocked off of the said car by a brace of a shed which extended over the defendant's railway and over the car on which he was standing, and was run over by one of said cars and received injuries as a proximate result of which he died on, to wit, the 12th day of April, 1905; and plaintiff alleges that the injury which resulted in the death of her intestate was proximately caused by reason of the negligence of a person in the service or employment of defendant, to wit, one Will Akers, who had charge or control of defendant's locomotive on a railway which was being operated by the defendant, and who was the engineer on defendant's said locomotive, and that said negligence consisted in this, viz., said Akers started the said cars upon one of which the plaintiff's intestate was standing and negligently failed to ring the bell or blow the whistle on said locomotive, or to otherwise give warning of the fact that he was ready and about to start said cars, which caused the plaintiff's intestate to be struck by said brace and run over by one of said cars, and to receive injuries as a proximate consequence of which he died as aforesaid."

The following demurrers were interposed: "(1) It is not alleged or shown that it was the duty of said person to ring the bell or blow the whistle on said locomotive, or to otherwise give warning of the fact that said cars were to be started. (2) The necessity for warning plaintiff's intestate is not therein shown. (3) It is not alleged or shown that plaintiff's intestate was ignorant of the fact that said cars were about to be started. (4) For aught that appears, plaintiff's said intestate was in charge of the crew which operated said cars. (5) For aught that appears plaintiff's intestate was himself the superintendent over the cars and persons working thereon. (6) No facts are alleged which show that it was the duty of said person to warn plaintiff's intestate of the starting of the said cars. (7) For aught that appears therein, plaintiff's intestate knew that the brace of said shed would strike him if said cars were started, and nevertheless assumed a dangerous position on said cars with reference to said brace. (8) It does not appear therefrom with sufficient certainty that plaintiff's intestate's death was caused...