Louisville & N.R. Co. v. Andrews

• Decision Date: 30 November 1910
• Citation: 171 Ala. 200,54 So. 553
• Parties: LOUISVILLE & N. R. CO. v. ANDREWS.
• Court: Alabama Supreme Court

54 So. 553

171 Ala. 200

LOUISVILLE & N. R. CO. v. ANDREWS.

Supreme Court of Alabama

November 30, 1910

Rehearing Denied Feb. 16, 1911.

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

Action by John L. Andrews against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Goodwyn & McIntyre, for appellant.

W. A Jordan and J. M. Chilton, for appellee.

MAYFIELD J.

Appellee was a machinist, employed by appellant in its roundhouse at Montgomery. His chief duty was to repair engines, to discharge which it was frequently necessary to go under the engines; and for this purpose pits were dug between and under the railroad tracks. In case the engine to be repaired was dead--that is, not supplied with steam--it was moved over and off these pits by a switch engine operated by a hostler. The hostler was employed in the switching yards of the appellant company, and one of his duties was to bring in and take out the engines which were repaired. On the night of the injury complained of plaintiff, appellee here, called this hostler (Cunningham) to remove an engine from one of these pits. Each engine is equipped with a large iron bar called a "push bar," or "knuckle," attached at the front end, which, when let down, extends out horizontally over the pilot, and is used to couple onto other engines necessary to be moved. This bar on the engine in question weighed about 250 pounds. When not in use the push bar is raised upon a hinge, attached at one end, and goes back and rests upon the front of the engine, in which position it is secured by means of a spring or lever. The hostler, on the occasion of the injury, called generally for some one to come and assist him in lowering the push bar so that it could be used to couple the switch engine onto the dead engine which was to be moved; and as plaintiff was the one who desired the engine moved he went to the assistance of the hostler, to aid him in lowering the push bar, and in so doing he suffered the injuries complained of as he says, by the bar's striking him as it fell, when released by him or by the hostler in their attempt to lower it. He was knocked senseless and so remained for some time and, as his testimony showed, was seriously and painfully hurt.

The trial was had on counts 1, 2, 4, 5, and 6. Count 1 is under subdivision 5 of the employer's act (Code 1907, § 3910) and seeks to recover on account of the negligence of the hostler, Cunningham, who is alleged to have been in control of the engine. Count 2 is under the second subdivision of the act and is based also upon the negligence of Cunningham; and alleges that he was in superintendence of some part of the work. Count 4 is under subdivision 1 of the act, and alleges a defect in the machinery, to wit, the push bar attached to this engine. The fifth count seeks to fasten upon the master the common-law liability for failure to properly light the premises in which plaintiff had to work. Each of these counts was subsequently amended, and, as amended, demurrers were overruled thereto. To each count the defendant pleaded the general issue and special pleas of contributory negligence. A demurrer, however, was sustained as to plea 2, one of the pleas of contributory negligence. If this was error it was without injury, because there were other pleas setting up virtually the same defense attempted by it.

While error is assigned as to all the rulings on demurrers to the complaint, and some insistence is made in appellant's brief as to such assignments, we think the counts as last amended sufficient to support the judgment, and not subject to the demurrers interposed.

Count 1 was sufficient under the fifth subdivision of the employer's liability act. It sufficiently alleged that the hostler, Cunningham, was in control of the engine, within the meaning of the statute, so as to render the master liable as for his negligence under this particular subdivision. He is alleged to have been, and the proof seems to show that he was, at the time, the sole person in charge or control of the switch engine. The engine could not run automatically, and if he was not in charge or control no one was. The facts alleged and proven distinguish this case from Richardson's Case, 100 Ala. 232, 14 So. 209.

It was likewise a question for the jury, as to whether or not this hostler was guilty of actionable negligence which was alleged, and which proximately resulted in injury to plaintiff. While there is no direct or positive evidence of any negligence on his part, there was evidence, to wit, that of plaintiff, of the hostler, and of others probably, from which it was open to the jury to infer such negligence, and hence the court properly refused to give the affirmative charge for defendant as to this count. It was open for the jury to find under this count as they did find.

We do not think, however, that the plaintiff proved his count under the second subdivision of the employer's act. It was not proven that Cunningham was intrusted with any superintendence, within the meaning of this subdivision; and if this could be said to be doubtful, or if there was any evidence to carry this question to the jury (but we think there was none), certainly there was no evidence showing or tending to show that the negligence of Cunningham (if such was proven) was "whilst in the exercise of such superintendence," which the statute requires. The only negligence on his part, attempted to be shown, was in the manual labor or effort of lowering the push bar or knuckle, and had nothing whatever to do with the superintendence of the master's work or of other employés. Dantzler's Case, 101 Ala. 309, 14 So. 10, 22 L. R. A. 361; Freeman's Case, 137 Ala. 481, 34 So. 612.

We do not think there was any evidence to support a judgment under the counts which were based upon the negligence of the master in failing to sufficiently light his premises in which plaintiff was required to work.

The plaintiff's evidence on this subject was as follows "That at the time of the injury there were three arc lights, and drop lights on every post at the roundhouse, and there was a post between every pit, but that only one row of posts had drop lights, and that is the front row next to where the pilot stops; that he thought six or eight posts and then two drop lights at the wheel press; then two in the toolroom; then two in the little office, and one inside 'where we had to go get reports'; and that he had nothing to do with the lighting of the building; that up to four or five minutes of the injury the three arc lights were burning and gave good light, but there were no drops; that at the time one of the arc lights was out and one would come and flash and go out, and that the one that burned was nearest to him, but that the engine made so much smoke that the smoke could not get out at the place for it to go; that he would have to see over three engines to do what he was doing, aside from the smoke; that the lights had been tolerably good with the exception of once or twice, but that the night he was injured the...