Louisville & N.R. Co. v. Wright

• Decision Date: 21 November 1918
• Docket Number: 8 Div. 123
• Citation: 202 Ala. 255,80 So. 93
• Parties: LOUISVILLE & N.R. CO. v. WRIGHT.
• Court: Alabama Supreme Court

80 So. 93

202 Ala. 255

LOUISVILLE & N.R. CO. v. WRIGHT.

8 Div. 123

Supreme Court of Alabama

November 21, 1918

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action by Mollie Wright, administratrix, against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Eyster & Eyster, of Albany, for appellant.

Callahan & Harris, of Decatur, for appellee.

SAYRE J.

This suit was prosecuted to judgment by appellee under the Federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat 65 (U.S.Comp.St.1916,§§ 8657-8665). Counts 5 and 6, upon which the case was submitted to the jury, alike charged in the very general terms allowed by the statute that plaintiff's intestate suffered injury by reason of defendant's negligence in the operation of its freight train upon which said intestate was at the time engaged in the performance of duties he had been employed by defendant to perform. They differ in this: In count 5 plaintiff sought to recover the pecuniary loss suffered by decedent's surviving widow and children, while count 6 sought to recover damages suffered by deceased in his lifetime. This joinder was not questioned. Louisville & Nashville v Fleming, 194 Ala. 51, 69 So. 125; St. Louis, Iron Mountain, etc., v. Craft, 237 U.S. 648, 35 Sup.Ct. 704 59 L.Ed. 1160. The case having some support in the evidence was that, by reason of the negligence of defendant's engineer in bringing his train to a sudden and violent stop, plaintiff's intestate was thrown against a railing on the caboose on the platform of which, in the discharge of his duty, he was riding, and received injuries which caused, or aided in causing, his death. In view of some suggestions in the brief, it may be well enough to state that while the evidence went to show without conflict that at the time of his injury, and, for that matter, at the time when he entered the service of defendant, plaintiff's intestate was afflicted with a slow but incurable and fatal disease of the kidneys, the jury were authorized to find that the shock received by him, though it would have been of no serious consequence to a sound man, in his condition aided and expedited his death. Other necessary conditions found, this would justify a verdict holding defendant to liability as an efficient agent in causing the death of plaintiff's intestate. Thompson v. Louisville & Nashville, 91 Ala. 496, 8 So. 406, 11 L.R.A. 146.

The main proposition of the appeal is that the trial court erred in refusing the general charge requested by the defendant in proper form, this on the ground that the evidence established without dispute defendant's plea of assumption of risk. The servant or employé assumes the risks necessarily incident to his employment, for such risks cannot be obviated by the master or employer; but this statement, though not infrequently met, does not express the full meaning of the rule, the more approved statement of which (aside from the requirements of those cases in which the servant is incapable of appreciating the hazards to which he is exposed) is that "a servant assumes all the ordinary risks which are incidental to his employment." 1 Labatt, §...