Louisville & N.R. Co. v. York
Citation | 30 So. 676,128 Ala. 305 |
Court | Supreme Court of Alabama |
Decision Date | 23 January 1901 |
Parties | LOUISVILLE & N. R. CO. v. YORK. [1] |
Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.
Action by Mary E. York, administratrix, against the Louisville & Nashville Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.
This action was brought to recover damages for injuries received by plaintiff's intestate while in the employ of the defendant. The complaint contained six counts; some charging willfulness, and others simple negligence. The third count relied upon the failure of the defendant to discharge its duty to its employés, rather than the negligence of a fellow servant. The fourth count charged willful wrong. The sixth count averred that plaintiff's intestate, while rightfully in the discharge of his duties as an employé of defendant, was crushed and killed between two cars of defendant by reason of the carelessness of one Sharpe, who was in charge of defendant's engine. A demurrer to each of these counts was overruled. One of the material facts in dispute was whether the engine, which, in charge of defendant's employé Sharpe, caused the injury, was moved in response to a signal from plaintiff's intestate, or in consequence of a signal intended for another engineer. The other facts necessary to an understanding of the points decided sufficiently appear in the opinion. There were verdict and judgment for plaintiff for $7,656.74, after which defendant moved for a new trial, which motion was denied.
Thos G. & Chas. P. Jones, for appellant.
Banks & Selheimer and Lane & White, for appellee.
This action is prosecuted by Mrs. York, as administratrix of her deceased husband, against the Louisville & Nashville Railroad Company, under the employer's liability act, for damages for his death. There was judgment for plaintiff, from which defendant appeals. The position taken by counsel for appellant that there can be no recovery for wantonness willfulness, or intentional wrong under said act, now section 1749 of the Code, has been adjudged untenable in the recent case of Railway Co. v. Moore (Ala.) 29 So. 659. The further contention for appellant, that, even granting that a recovery in this class of cases may be rested upon wanton, willful, or intentional misconduct, yet, inasmuch as such recovery is a punishment of the employer for the willful wrong of one employé, causing the death of another employé, it should never be allowed when the injured party's own negligence contributes to the result, proceeds on the mistaken idea that such recovery is punitive, which it is not, but purely compensatory; and the theory is that the employer should make compensation for injuries purposely inflicted, notwithstanding negligence on the part of the injured party, because the injury is in no degree ascribed to such negligence, but is the result solely of the effectuation of the evil purpose of the wrongdoing employé. The position, to our minds, takes no account of the consideration that negligence on the part of the injured employé can only coalesce and combine with the same quality of act on the part of the employé inflicting the injury,-with his negligence, and not with his intentional wrong,-to the relief from liability of the common employer; and it is in the teeth of numerous decisions of this court. Upon the foregoing considerations we rest our conclusion that the fourth count states a cause of action, and that the intestate's negligence is no defense to it.
The third count also states a cause of action, in our opinion. It is not drawn under the employer's liability act, but counts upon the duty which the defendant directly owed its employés, and neglected to perform, to establish and promulgate rules and regulations for signaling to engineers of switch engines, in a yard where there were many tracks, and where two or more engines are employed near each other at night, so that the engineers would be able to distinguish the signals intended for them respectively; it being averred in the count that the signals used were the same for all the engineers, and that plaintiff's intestate was killed in consequence of the engineer of the engine with which the intestate was working mistaking a signal intended for another engineer, and moving his engine accordingly. Bailey, Mast. Liab. p. 71 et seq.
The sixth count shows with sufficient clearness and certainty that intestate was rightfully between two cars, and that the engineer so negligently and carelessly operated his engine as to cause said cars to come together, thereby crushing and killing intestate. The demurrer to this count was properly overruled; and, if it be conceded that the demurrer to count 5 should have been sustained, it is yet clear on the whole case that the error committed in overruling it did not prejudice the defendant. There was, as indicated above evidence tending to show that the engine was moved so as...
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...or to have their memories refreshed--sometimes unduly--by hearing the testimony of other witnesses.' Louisville & Nashville R.R. Co. v. York, 128 Ala. 305, 310, 30 So. 676, 678 (1901)." Ex parte Faircloth, 471 So.2d 493, 496 The appellant has not shown that he was prejudiced by the absence ......
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