Louisville & N.R. Co. v. Jones

Decision Date06 June 1901
Citation30 So. 586,130 Ala. 456
CourtAlabama Supreme Court
PartiesLOUISVILLE & N. R. CO. v. JONES.

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by Stephen A. Jones, as administrator of the estate of Walter T. Jones, against the Louisville & Nashville Railroad Company. From a verdict in favor of plaintiff, defendant appeals. Reversed.

This action was brought by S. A. Jones, as administrator of the estate of Walter T. Jones, deceased, against the appellant the Louisville & Nashville Railroad Company, and sought to recover damages for the alleged negligent killing of the plaintiff's intestate; the damages claimed being $25,000. The complaint contained, as amended, 10 counts. The plaintiff subsequently abandoned all the counts of the complaint except the first, second, third, and seventh. It was alleged in each of the counts of the complaint that the defendant was engaged in operating a railroad, and that while one of the trains of the defendant was running upon one of its tracks a car became derailed, and that while the plaintiff's intestate, who was in the service and employment of the defendant, was assisting in getting said car upon the rails of the track the car fell upon said intestate, and so injured him that he died. The allegations of negligence contained in the first second, third, and seventh counts were as follows: (1) "Plaintiff alleges that said car fell upon his intestate, and he died as aforesaid, by reason and as a proximate consequence of a defect in the condition of the ways, works, machinery, or plant connected with or used in the said business of defendant, which said defect arose from or had not been discovered or remedied owing to, the negligence of defendant, or of some person in the service of defendant, and intrusted by it with the duty of seeing that the said ways, works, machinery, or plant were in proper condition, viz. the appliances used by defendant in or about attempting to get said car upon said rails were not proper and sufficient for that purpose." (2) "That said car fell upon said intestate, and he died as aforesaid, as a proximate consequence and by reason of the negligence of a person in the service or employment of defendant who had superintendence intrusted to him whilst in the exercise of such superintendence, viz. defendant's conductor, to wit one Lee, negligently caused or allowed the use of means or appliances in or about attempting to get said car on said rails, which were likely to cause or allow said car to fall as aforesaid." (3) "Said car fell upon said intestate, and he died as aforesaid, as a proximate consequence and by reason of the negligence of a person in the service or employment of defendant who had superintendence intrusted to him whilst in the exercise of such superintendence, viz. defendant's section boss, to wit, one Smith, negligently caused or allowed the use of means or appliances in or about attempting to get said car upon said rails, which were likely to cause said car to fall as aforesaid." (7) "The said car fell upon said intestate, and he died as aforesaid, as a proximate consequence and by reason of the negligence of a person in the service or employment of defendant who had superintendence intrusted to him whilst in the exercise of such superintendence, viz. defendant's conductor, to wit, one Lee, negligently caused or allowed the attempt to get said car upon said rails without proper appliances."

The defendant demurred to the first count of the complaint upon the following grounds: (1) It states no cause of action against defendant. (2) Said count is indefinite in its allegations of negligence. (3) It does not appear that the appliances used in or about attempting to get said car upon the track was a part of the ways, works, machinery, or plant. (4) It does not allege wherein the appliances used in getting the car on the track were defective. To the second and third counts of the complaint the defendant demurred upon the following grounds: (1) The allegations of said complaint are vague, indefinite, and uncertain. (2) The allegations of negligence in said count are indefinite. (3) Said counts present no cause of action against defendant. (4) It is not alleged that the said superintendent knew that the appliances being used were likely to cause or allow the car to fall. (5) The allegations of negligence contained in said counts fail to show that the alleged superintendent was negligent. To the seventh count of the complaint the defendant demurred upon the following grounds: (1) The allegation of negligence is indefinite. (2) It is not shown by the allegations of negligence that the alleged superintendent was negligent. (3) It is shown that the plaintiff's intestate was guilty of contributory negligence. (4) It is not alleged how the negligence complained of in the said count was the cause of the death of plaintiff's intestate. The demurrers to each of the first, second, third, and seventh counts were overruled, and thereupon the defendant duly excepted.

The defendant filed nine pleas, the first, second, and third of which were, in different words, the general issue. The fourth plea set up the contributory negligence of the plaintiff, and averred that said contributory negligence consisted in deceased negligently allowing his head to be caught between truss rod and oil box. The fifth plea likewise sets up the contributory negligence of the deceased, and avers that he was negligent in the manner in which he assisted in doing the work at the time of the accident. The sixth plea is based on the contributory negligence of intestate, in that he negligently failed to get out of the way of the car when it fell. The seventh plea avers, in answer to the complaint, that at the time of the accident, and when intestate undertook to assist in the work of placing the car on the track, he knew the appliances that were being used for that purpose, and that he had knowledge of the character and sufficiency of such appliances, and that at such time he knew the force of men employed in the attempt to place said car on the rails, and that he knew the sufficiency of said force for said work, and that plaintiff's intestate was guilty of proximate contributory negligence in undertaking said work with such knowledge. The eighth plea is not to be found in the record. Plea number 9, in answer to the first, second, third, and seventh counts, avers that at the time plaintiff's intestate undertook the work of assisting to place the derailed car on the track he knew the appliances that were being used for that purpose, that at that time he knew their character and sufficiency and the force of men employed, and that by undertaking to assist in said work with such knowledge plaintiff's intestate assumed all the risks incident to said work. The plaintiff interposed demurrers to the eighth and ninth pleas. The demurrer to the eighth plea was sustained, and the one to the ninth plea was overruled. Issue was then joined on the first, second, third, fourth, fifth, sixth, and ninth pleas of defendant.

Upon the trial of the cause the following facts were disclosed Plaintiff's intestate, who was employed by the defendant railroad company in the capacity of flagman on one of its freight trains, was killed near Sloss, on the evening of August 13, 1897. The scene of the accident was a spur track, leading from defendant's line to an ore mine, said track being owned and operated by the defendant. An empty gondola car had become derailed early in the day, and Lee, the conductor of the train crew of which intestate was a member, and Smith, a section foreman employed by the defendant, had made efforts to get said car on the track. They first attempted to drag the car on with the engine and other cars, but in the attempt pulled the trucks from under the body of the car, and then, in order to get the car on the rails, it became necessary to use jacks and blocks. Two track or ratchet jacks were used for this purpose, intestate procuring some of the blocks from an ore tipple near by. Before the jacks and blocks were used successfully, Conductor Lee, being informed by his engineer that his water was low, left the scene of the wreck, and went with his train crew, Jones among them, to Bessemer. When Lee and his crew returned from Bessemer, they found that Foreman Smith and his gang had jacked up the hind end of the derailed car, but not high enough for them to accomplish their task. Under Lee's instructions, his crew procured more blocks, and finally succeeded in cribbing the hind end of the car. The jacks were then taken to the front end, and, according to the undisputed testimony, were placed on a firm foundation, and in every manner properly used. The front end of the car was then raised, intestate being present at the time, and seeing the work done, but not operating the jacks. Intestate and his fellow workers, under orders from Conductor Lee, then proceeded to put the trucks in their proper place under the car. Jones went under the north side of the car, and, after working under there some three or six minutes, and while in the act of shoving the trucks, was killed by the car falling on him. The evidence is in conflict as to the manner in which Jones was pushing the trucks. Witnesses for the plaintiff swear that he was pushing them with his hands, while defendant's evidence shows that he was pushing with his shoulder. The car fell only a short distance, but caught intestate's head between the truss rod and oil box. Intestate was removed from under the car as soon as possible after the accident. It appears from the evidence that the track jack is in use on well-regulated railroads in this country, it being shown by expert testimony that it is considered safe to jack up an empty car,...

To continue reading

Request your trial
34 cases
  • Short v. Boise Valley Traction Co.
    • United States
    • Idaho Supreme Court
    • February 13, 1924
    ... ... 886; Watson v ... Seaboard etc. Ry., 133 N.C. 188; 45 S.E. 555; ... McAdory v. Louisville etc. R. Co., 94 Ala. 272, 10 ... So. 507; Louisville etc. R. Co. v. Tramwell, 93 Ala ... 350, 9 So. 870; Louisville etc. R. Co. v. Jones, 130 ... Ala. 456, 30 So. 586; Atlantic etc. R. Co. v. Newton, 85 Ga ... 883, 11 S.E. 776; note, ... ...
  • Alabama Co. v. Brown
    • United States
    • Alabama Supreme Court
    • June 30, 1921
    ... ... releases because of incapacity by drunkenness, etc. In ... Jones v. Anderson, 82 Ala. 302, 2 So. 911, the suit ... was statutory detinue for oxen, etc., after ... ...
  • Kettlehake v. American Car & Foundry Co.
    • United States
    • Missouri Court of Appeals
    • February 4, 1913
    ... ... Railroad v. Moseley, 51 So. 424; Railroad v ... Jones, 130 Ala. 456; Swift & Co. v. Foster, 163 ... Ill. 50; Mulhall v. Fallon, 176 Mass. 266; ... ...
  • Hein v. Great Northern Railroad
    • United States
    • North Dakota Supreme Court
    • July 20, 1916
    ... ... 424; Bromley v ... Birmingham Mineral R. Co. 95 Ala. 397, 11 So. 341; ... Louisville & N. R. Co. v. Jones, 130 Ala. 456, 30 ... So. 586; Louisville & N. R. Co. v. Morgan, 114 Ala ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT