Louisville & N.R. Co. v. Markee

• Decision Date: 01 May 1894
• Citation: 15 So. 511,103 Ala. 160
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. Co. v. MARKEE.

15 So. 511

103 Ala. 160

LOUISVILLE & N. R. Co. v. MARKEE.

Supreme Court of Alabama

May 1, 1894

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Annie E. Markee, as administratrix of the estate of John S. Markee, deceased, against the Louisville & Nashville Railroad Company, to recover damages sustained by the death of plaintiff's intestate, alleged to have been caused by the negligence of defendant. There was judgment for plaintiff, and defendant appeals. Reversed.

The complaint as originally filed contained three counts. On motion of the plaintiff, the second count was stricken out. The first count of the complaint, after alleging the existence of the corporation as a common carrier, and the duties incident thereto, and the employment of the plaintiff's intestate by the defendant as a section foreman, and the running by the defendant of an extra freight train, then alleged the negligence complained of in the following language: "The plaintiff avers that the engineer in charge of said freight engine, and who, as plaintiff alleges, was in the service of defendant, ran said engine without due care, and negligently, through said cut and around said curve, and on the said John S. Markee, and then and there, on, to wit, October 1, 1891, killed him; and that, as plaintiff avers, the death of said John S. Markee was the result of the negligence of said engineer." The third county of the complaint, after averring in its primary allegations that it was the duty of the defendant to use due care and diligence, and have the engine which drew the freight train, and which caused the accident in the present case, is a reasonably safe condition, so that it could be easily controlled by the engineer in charge of the same alleged the negligence in the following language: "And the plaintiff avers that the engineer who was then in charge of said engine failed to check or stop said engine so as to enable said John S. Markee to get off defendant's track and that, as plaintiff avers, said failure to so check or stop said train was caused by reason of a defect in said engine and the brakes on said train." There were demurrers interposed by the defendant to each of these counts of the complaint, the principal grounds of which were that the averments of negligence in each of the counts were too uncertain and indefinite. These demurrers were overruled whereupon the defendant excepted. The defendant pleaded the general issue, and, by several special pleas, contributory negligence of the plaintiff. The first plea of contributory negligence was in the following language: "The defendant, for further answer to the complaint, says that the plaintiff's intestate himself was guilty of negligence in and about the way he was discharging his alleged duties, which negligence contributed proximately to his alleged injuries." To this plea the plaintiff demurred, on the ground that it failed to show any acts by the plaintiff or other facts which constituted the contributory negligence averred in said plea. This demurrer was sustained. The remaining pleas, wherein the defendant set up the plea of contributory negligence, averred the facts on which the defendant relied to show such contributory negligence, and the demurrers thereto were overruled.

The court, in its oral charge to the jury, among other things instructed them as follows: "You have heard the rules which have been admitted in evidence read, and it will be a question for the jury to determine whether the intestate was guilty of negligence in a violation of those rules." The defendant duly excepted to this portion of the court's oral charge, and also separately excepted to each of the following portions of the court's oral charge to the jury, which are numbered for convenient reference: (1) "It would be for the jury to judge of the conduct of the intestate, and say whether or not, in view of all the circumstances, he contributed to his own death by his own negligence or want of due care." (2) "If the case should appear to be one where the deceased would have, in addition to assisting in the support of the next of kin, accumulated an estate which would have gone to them at his death, that might be taken into consideration in measuring the pecuniary loss. If the jury can tell by the evidence that the deceased would have accumulated an estate if he had not been killed, which would have gone to the next of kin at his death, then that fact is to be taken into consideration, as well as the pecuniary assistance which he would have given them during his life." (3) "If the evidence, however, does not show that he would have made any such accumulation from his net earnings during his lifetime, if the evidence merely shows that he would only have contributed to their support during his lifetime, then only that loss should be considered in determining the pecuniary loss to the next of kin." At the request of the plaintiff, the court gave the following written charge to the jury: "Plaintiff's intestate assumed the risk incident to the service in which he was employed; yet, if the injuries resulted from superadded risk occasioned by the negligence of the engineer in charge of the engine that did the killing, he could recover, unless he is some way contributed proximately to the injury by a failure to exercise such reasonable care as the occasion required." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following written charges, requested by it: (1) "If the jury find for the plaintiff, they can only assess nominal damages." (2) "A mere failure on the part of the engineer of the defendant to use the utmost expedition or to select the most effectual means to stop his train after he discovered the peril of the intestate would not constitute willful, wanton, or intentional negligence, which would overcome the intestate's contributory negligence, if the jury find from the evidence that he was guilty of contributory negligence, unless the jury believe that such failure evinced on the part of the defendant's engineer a willingness to inflict the injury complained of." (3) "If the jury believe from the evidence in this case that the more effectual means for stopping defendant's train would be to first reverse the engine and then apply the brake, and if the jury further believe from the evidence that that the defendant's engineer first applied the brake and then reversed the engine, and if the jury further believe from the evidence that the defendant's engineer in good faith believed that the more effectual means to stop the engine was to first apply the brake and then reverse the engine, then the jury cannot find that the defendant's engineer was guilty of willful, wanton, or intentional negligence in first applying the brake and then reversing the engine." (4) "The jury are not authorized to find from the evidence that the engineer of defendant allowed his train to get beyond his control, or that he was engaged in chatting to the conductor, or that the conductor was not in his proper place, when in the engine, at and before the time of the accident." (5) "If the jury believe the evidence in this case, they must find that no preventive effort upon the part of defendant's servants in charge of the train would have availed to prevent the intestate's death after his peril became manifest to them." (6) "It was the duty of the plaintiff's intestate, under the evidence in this case, to protect his hand car while it was being operated on the track of the defendant from extra trains of defendant on said track; and the defendant owed plaintiff's intestate no duty to warn him of the approach of such train until his presence on the hand car on the track was discovered by the defendant's servants on its train." (7) "It was not the duty of the defendant's servants to give the plaintiff's intestate any notice of the approach of the extra train, which struck the hand car he was operating, until defendant's servants discovered, or would, by the exercise of reasonable diligence, have discovered, the presence of the hand car on the track." (8) "It was not the duty of the defendant's servants to give the plaintiff's intestate any notice of the approach of the extra train, which struck the hand car he was operating, until defendant's servants discovered the presence of the hand car on the track." (9) "It was not a duty which the defendant owed plaintiff's intestate to blow the engine whistle at the whistle post north of the public road crossing, which was north of the curve." (10) "The jury cannot find from the evidence that the defendant was guilty of willful, wanton, or intentional negligence." (11) "If the jury believe the evidence, they must find for the defendant under the first count."

On this appeal, prosecuted by the defendant, there is assigned as error the overruling of the defendant's demurrer to the first and third counts of the complaint, the sustaining of the plaintiff's demurrer to the first plea of contributory negligence, and the giving and refusing of the several charges.

Hewitt, Walker & Porter and J. M. Falkner, for appellant.

Bulger & Altman, for appellee.

COLEMAN J.

This is an action under the employer's liability act, to recover damages sustained by the death of plaintiff's intestate averred to have been caused by the negligence of the defendant railroad company. The case was tried upon two counts. The first count charges that the engineer in charge of the engine "ran said engine without due care, and negligently, through said cut, and around said curve, and on the said John S. Markee," etc., and that his death "was the result of the negligence of said engineer." The other count charges a defect in the ways,...