Louisville & N.R. Co. v. Holland

• Decision Date: 16 December 1909
• Citation: 164 Ala. 73,51 So. 365
• Parties: LOUISVILLE & N. R. CO. v. HOLLAND.
• Court: Alabama Supreme Court

51 So. 365

164 Ala. 73

LOUISVILLE & N. R. CO. v. HOLLAND.

Supreme Court of Alabama

December 16, 1909

Appeal from Circuit Court, Limestone County; D. W. Speake, Judge.

Action by W. T. Holland, as administrator, against the Louisville &amp Nashville Railroad Company. Plaintiff had judgment, and defendant appeals. Reversed.

The complaint was as follows:

(1) "The plaintiff, W. T. Holland, as administrator of the estate of Ramsey L. Holland, deceased, claims of the defendant, the Louisville & Nashville Railroad Company, a corporation, the sum of $25,000 as damages, for that whereas, the said defendant was engaged in the business of operating a railroad between the city of Nashville, Tenn and the town of Decatur, Ala., and which railroad passed through the town of Athens, Limestone county, Ala.; that plaintiff's intestate was, at the time of the injuries resulting in his death, hereinafter complained of, an employé of defendant, engaged in the discharge of his duties as such employé, and whilst plaintiff's intestate was in the employ of said defendant, on, to wit, the 6th day of March 1908, in the corporate limits of the town of Athens, county of Limestone, plaintiff's intestate was injured, and from such injuries he died; and plaintiff avers that the injuries of his said intestate were caused by the negligence of one T. J. Douglass, an engineer of defendant, who then and there had charge or control of the engine of defendant, and which said engineer was then and there acting in the scope of his employment, and which said engine was then and there upon the railway of said defendant."

(2) Same as 1, except the negligence is alleged in the running of the engine by Douglass at a greater rate of speed than permitted by the town ordinances of the town of Athens.

(6) "Plaintiff claims of the defendant the sum of $25,000 as damages, for that heretofore, to wit, on the 6th day of March, 1908, defendant's agents or servants were operating an engine or locomotive on the Louisville & Nashville Railroad in the town of Athens, Limestone county, Ala., to which engine or locomotive cars were attached, and which were being operated by defendant, through its servants or agents, wrongfully or negligently ran said engine, or cars attached to said engine, against or upon plaintiff's intestate, the said Ramsey L. Holland, whereby the death of said intestate was caused, and from which wrongful or negligent act or acts, and, as a proximate consequence thereof, said intestate died."

(7) Omitting formal charging part: "On the 6th day of March, 1908, plaintiff's intestate, Ramsey L. Holland, was in the service or employment of defendant, and in discharge of his duties as flagman or brakeman, to flag trains on defendant's railway, and while flagging in the town of Athens, as his duties required him to do, one of defendant's engineers, T. J. Douglass, who had charge or control of a locomotive or engine, operated on defendant's road or railway, negligently failed to keep a lookout, and negligently ran the locomotive or engine, or cars attached thereto, upon or against the decedent, and as the proximate cause or result thereof killed him."

(11) Omitting formal charging part: "On, to wit, the 6th day of March, 1908, plaintiff's intestate was in the employ of said defendant as a brakeman; that a part of said decedent's duties was to flag trains, and in the discharge of his duty said decedent went about 700 feet south of the depot in the town of Athens to flag a train; that while waiting for said train plaintiff's intestate fell asleep on or close to the railroad track of defendant in said town of Athens; that one of defendant's engineers, T. J. Douglass, who had charge or control of the locomotive or engine operated then and there on the said railway of said defendant, and to which engine or locomotive cars were attached, wrongfully or negligently ran such engine or locomotive, or cars attached to said locomotive, against or upon plaintiff's intestate, and from said wrongful or negligent act or acts, and as a proximate consequence thereof, the said Ramsey L. Holland, died."

The demurrers sufficiently appear from the opinion, except as to count 1, and they are as follows: "It fails to aver the name of the engineer, or that his name was unknown; it fails to aver how or in what manner the injuries complained of were received; fails to aver how or in what manner said engineer was negligent; fails to set forth the facts constituting the negligence of the engineer; it does not aver that said engineer was acting within the line and scope of his authority."

Sanders & Thatch, for appellant.

W. R. Walker, for appellee.

ANDERSON J.

As was held in the case of L. & N. Co. v. Marbury, 125 Ala. 237, 28 So. 438, 50 L. R. A. 620, and repeatedly approved by this court, the complaint need not set out in detail the specific acts constituting negligence. Count 1 was not therefore subject to defendant's demurrer which was properly overruled by the trial court.

The running of the train in violation of the municipal ordinance cannot be made the basis of an action by an employé for injuries resulting therefrom. A compliance with the statute and municipal ordinances in this respect is intended for the protection of the public and not the employés of the railroad company. Cen. of Ga. v. Martin, 138 Ala. 531, 36 So. 426; Lewis v. So. R. R., 143 Ala. 133, 38 So. 1023; L. & N. R. R. Co. v. Markee, 103 Ala. 173, 15 So. 511, 49 Am. St. Rep. 21. Count 2 showed that the intestate was an employé, and the running of the train in violation of the town ordinance was not the breach of a duty owing him, and the demurrer to this count should have been sustained.

While a complaint need not define the quo modo, or specify the particular acts of diligence omitted, yet, when simple negligence constitutes the cause of action, it is incumbent upon the plaintiff to bring himself within the...