Louisville & N.R. Co. v. Bouldin

• Decision Date: 16 May 1899
• Citation: 121 Ala. 197,25 So. 903
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. BOULDIN.

25 So. 903

121 Ala. 197

LOUISVILLE & N. R. CO. v. BOULDIN.

Supreme Court of Alabama

May 16, 1899

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Action by Sallie M. Bouldin, as administratrix, against the Louisville & Nashville Railroad Company for damages for the killing of Richard M. Bouldin. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The complaint contained five counts, and the trial was had upon the third, fourth, and fifth counts. The third and fourth counts were as follows: "Third. The plaintiff claims of the defendant the further sum of fifteen thousand dollars ($15,000) as damages, for that, while the plaintiff's said intestate was engaged in the service of the defendant as aforesaid on or about the 30th day of August, 1892, and while he was standing upon the footboard of a moving engine, in the discharge of his duty as such servant or employé, he was struck by an obstruction which had been negligently permitted to be and remain upon the defendant's track, or near thereto, and was thrown to the ground and injured so that he died on or about the same day. And the plaintiff shows that said injuries to the plaintiff's intestate were caused by reason of the negligence of one W. E. Oakley, a person in the employment of the defendant, who had superintendence intrusted to him, while in the exercise of such superintendence, in this: that said W. E. Oakley was then and there the yardmaster of the defendant, and as such was intrusted by the defendant with superintendence of its said track at the point where plaintiff's intestate received said injuries from which he died, and said W. E. Oakley while in the exercise of said superintendence, was negligent in permitting said obstruction to be and remain upon or near to said track. Fourth. The plaintiff claims of the defendant the further sum of fifteen thousand dollars ($15,000) as damages, for that, while the plaintiff's said intestate was engaged in the service or employment of the defendant as aforesaid on or about the 30th day of August, 1892, and while he was upon a moving engine then and there engaged in the business of the defendant, on one of its tracks in the said county of Morgan, he was struck by an obstruction which had been negligently permitted to be and remain upon or near to said track, and in consequence of being so struck he received injuries from which he died. At the time of said injuries plaintiff's said intestate was so serving upon said engine in obedience to the orders or direction of the defendant's yardmaster, to whose orders or directions plaintiff's said intestate was bound to conform and did conform; and said injuries were caused by reason of the negligence of said yardmaster in requiring plaintiff's said intestate to perform said service while said obstruction was negligently permitted to be and remain upon or near to said track, and resulted from his having so conformed to said orders and directions." The fifth count, as amended, was as follows: "Fifth. The plaintiff claims of the defendant the further sum of fifteen thousand dollars ($15,000) as damages, for that, while the plaintiff's said intestate was engaged in the service or employment of the defendant as aforesaid, and while he was upon a moving engine upon one of the defendant's tracks, in or near to said city of Decatur, in said Morgan county, in the discharge of his duty as such servant or employé, he was struck by an obstruction upon or near to defendant's said track, and was thereby thrown to the ground, and injured so that he died on or about the same day. And said injuries to the plaintiff's said intestate were caused by reason of the negligence of the defendant's engineer, who had charge or control of said engine, in running said engine past or by said obstruction while plaintiff's intestate was in such a position upon said engine as to be exposed to peril by reason of said obstruction, whereby plaintiff's said intestate was injured and killed. At the time said engine was so run past or by said obstruction, the said engineer knew or had reason to believe that plaintiff's said intestate was in such a position on said engine as that he might be injured in passing said obstruction." To the third count the defendant demurred upon the following ground: "Said count does not aver that obstruction was left in the place where it was in said count alleged, by any one for whose action defendant is or would be responsible." To the fourth count the defendant demurred upon the following grounds: (1) "Said count does not aver that said oil box or obstruction was left in the place where it was in said count alleged, by any one for whose action defendant is or would be responsible." (2) "Because count does not state the name of the yardmaster or person to whose orders or directions plaintiff's intestate was bound to conform and did conform." To the fifth count, as amended, the defendant demurred upon the following grounds: "First. Said amendment avers matters which are clearly conclusions of the pleader, and not statements of fact, in its averment of the position of the intestate. Second. It is vague uncertain, and indefinite in its averment that intestate 'might' be injured, and does not aver that said position was such that injury would result therefrom. Third. Said count, as amended, does not aver that the intestate did not also know of said alleged danger. Fourth. Said count, as amended, is uncertain and indefinite in its averments that the intestate 'might' be injured, and does not aver that said position was such that injury would result therefrom, and that the probability of injury was not known to the intestate." These demurrers were overruled, to which ruling the defendant duly excepted. Thereupon the defendant filed the plea of the general issue, and several special pleas, by which it set up, respectively, contributory negligence on the part of plaintiff's intestate. In some of the special pleas it was averred that the injury resulting in the death of the plaintiff's intestate was occasioned by said intestate trying to cross from one side of the footboard on which he was standing to the other side, and that in making the attempt he fell between the engine and car to which it was coupled, sustaining the injuries resulting in his death. To the fifth count of the complaint the following special pleas were interposed: (1) "The position of Bouldin on said engine was such that he saw, or could have seen by the exercise of his senses, the oil box mentioned and he knew, or was in a position to know, the proximity of the same to the track, and knew that it was a dangerous position to be in to stand on the footboard, with his foot protruding beyond the edge of the same; and, if the injury to plaintiff's intestate occurred by reason of the projecting of his foot beyond said footboard, he was thereby guilty of negligence which proximately contributed to the injury complained of." (2) "Answering the whole complaint, defendant says that plaintiff's intestate did not come in contact at all with said oil box, but that the injury complained of occurred by the said Bouldin negligently and carelessly attempting to jump from one end of the footboard of the engine over the bumpers, and in so doing fell, whereby he was guilty of negligence which proximately contributed to the injury complained of." Upon plaintiff's demurrers to this plea being overruled, issue was joined upon them.

The evidence shows that the plaintiff's intestate was killed on August 3, 1892, about 9:30 o'clock, in the shop yard of the defendant in New Decatur, and that he was a switchman of long experience; that at the time he was killed the engine on which he was switchman was engaged in placing cars in and taking them out of the yard; that the engine, without any cars, backed up from the main track on track No. 5 for the purpose of getting a car and placing it on track No. 7; that Bouldin, the plaintiff's intestate, and one Robertson who was fireman of the engine, were standing upon the footboard, just to the rear of the tender, when the engine backed in upon track No. 5; that this track was straight; and that obstructions along the track could be easily seen. On the left-hand side of track No. 5, and nearly midway between the main track and the freight-car repair shop, was an oil box. An oil box is a box that belongs to the car axle, in which they keep packing and oil to preserve the axles and keep them from getting hot, and the weight of the car rests on this box and axle. At the time of the accident there was a great deal of work being done in the yard, and Bouldin had been cautioned about the dangers incident to his employment when switching in the yard when there was much work going on and it was shown that Bouldin knew rule 130 of the defendant which especially cautions employés against taking any risks which, by the exercise of their own judgment and proper care, they could protect themselves against. The uncontroverted evidence shows that, when the engine backed in, Bouldin was on the left-hand side of the switchboard on the end of the tender, which was in front, in the direction in which the engine was moving as it backed up to the freight-car repair shops to couple on some cars there. After this coupling was made, the engine and cars started, the engine moving forward, to the main track over track No. 5, in order to transfer the cars to track No. 7; and Bouldin was standing on the left-hand side of the switch board at the end of the tender as the engine moved forward. He was found on the right-hand side of the track, near the oil box, and, in order to have passed from the left to the right-hand side of the switchboard, must have climbed or passed over the coupling which connected the tender...