Louisville & N. R. Co. v. Winn

• Decision Date: 12 January 1910
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. WINN.

51 So. 976

166 Ala. 413

LOUISVILLE & N. R. CO. v. WINN.

Supreme Court of Alabama

January 12, 1910

Rehearing Denied Feb. 26, 1910.

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

Action by Tom Winn against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The third count was as follows: "Plaintiff claims of defendant $2,000 as damages, for that heretofore, on the 4th day of January, 1905, plaintiff was an employé of the defendant in its railroad shop in the town of New Decatur Alabama, and in the course of his employment it became and was his duty to assist in unloading a barrel filled with brass borings or scrap brass, weighing, to wit, 1,000 pounds from a certain car in or near the defendant's said shops in said town, and while engaged as aforesaid the said barrel with its contents fell upon plaintiff, breaking, bruising and mangling plaintiff. [Here follows a list of special injuries and damages.] Plaintiff avers that he was injured by reason of the negligence of one Lenear Royer, who was at the time in the service or employment of defendant, and to whose orders and directions plaintiff was at the time of the injury bound to conform, and did conform; and plaintiff avers that his said injuries resulted from his having so conformed, in that said Royer negligently ordered plaintiff and three others, fellow servants of plaintiff, to unload said barrel as aforesaid; and plaintiff avers that there was not a sufficient number of men to unload said barrel with reasonable safety, on account of which plaintiff was injured as aforesaid."

Ground of demurrer B to said count is as follows: "Said count shows that no duty rested upon plaintiff under his employment to require him to undertake to do that which could not be done by him and his fellow workmen, notwithstanding they may have had orders so to do."

The following pleas were filed: (10) "Plaintiff was guilty of negligence proximately contributing to the injuries complained of in this: That he was a subordinate foreman of a band or number of men assigned to different duties, and that it was his duty to receive orders from his superior foreman Lenear Royer, as to the duties to be performed by him, and the men under him; that said Lenear Royer directed him to have his men unload said barrel of siftings from said car that it was his duty to assemble a sufficient number of said men under him for said purpose, and that it was no part of his duty to assist in the unloading of said barrel; but that it was his duty to see that said men unloaded the same, and that the manual labor in unloading same was not a part of his duty, and in performing such work he was not at his place of duty, and that his assuming said duty was voluntary on his part, and in the performance of which he received the injuries complained of." (13) "Plaintiff was guilty of contributory negligence proximately producing the injury complained of in this: That he knew that it was a safe and proper way to have said barrel unloaded by the use of skids; that he had charge of the men engaged in unloading the same; that he knew it was dangerous to unload the same by attempting to lift said barrel to the ground without knowing the weight of its contents; and that he did attempt to lift the same to the ground, whereby he received the injuries complained of."

The following is charge 4: "The plaintiff has introduced the answers of the defendant as evidence in his own...