Louisville & N.R. Co. v. Barganier

Citation53 So. 138,168 Ala. 567
CourtSupreme Court of Alabama
Decision Date26 February 1910
PartiesLOUISVILLE & N. R. CO. v. BARGANIER.

Rehearing Denied June 30, 1910.

Appeal from Circuit Court, Covington County; H. A. Pearce, Judge.

Action by W. H. Barganier against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Anderson and McClellan, JJ., dissenting.

The substance of the complaint is sufficiently set out in the opinion. The following are the pleas referred to in the opinion: (2) "Further answering said complaint separately and severally each count thereof, this defendant says that the plaintiff himself was guilty of negligence approximately contributing to the injuries complained of in this: That at the time the plaintiff sustained the injuries complained of the engine of the defendant was in motion, and the plaintiff with a knowledge of this fact attempted to get on said engine while it was in motion, and in so doing sustained injuries, the injuries complained of." (5) "To each and every count separately and severally this defendant says that the plaintiff himself is guilty of negligence, which contributed proximately to the injuries complained of, in this: That at the time of the injuries complained of the plaintiff was in the employ of the defendant as a section foreman. That as such foreman he was not authorized, nor was it within the scope of his duties, to go upon defendant's engine. But, notwithstanding this plaintiff attempted to get upon plaintiff's engine while it was so in motion. That it was obviously dangerous for the plaintiff to attempt to get upon said engine while it was so in motion, and that in attempting to do so he sustained the injuries complained of." Pleas 3 and 4 are similar to plea 5, except that plea 3 omits to state plaintiff's employment, and it merely alleges that he was not acting within the scope of his employment, while plea 4 alleges his employment, with the further allegation that his duties were not in any way connected with defendant's engine, and did not require the plaintiff to go upon the defendant's engine. Each plea alleges that the engine was moving, and that with knowledge of this fact plaintiff attempted to get on said engine while in motion. Pleas 6, 7, and 8 are similar to 5, except that it is not alleged that the engine was in motion when he attempted to board it. Plea 7 contains the further allegation that no one in charge of said engine was authorized or empowered to require the plaintiff to come upon said engine. Plea 8 further alleges that the servants in charge of the engine did not know that plaintiff was attempting to board the engine.

It appeared from the testimony of the plaintiff, Barganier, that after the accident, and at the time of the suit, he was in the saloon business; that while working for the railroad he received $40 per month; and that the saloon business about made him a living, nothing clear. At this juncture defendant's attorney asked the witness, "About how much would your sales average?"

Refused charges from 1 to 15, inclusive, were the affirmative charges as to the various counts of the complaint. The other charges were upon the effects of the evidence, or that there was no evidence of the particular matters.

George W. Jones, Henry Opp, and Powell, Albritton & Albritton, for appellant.

Clive E. Reid and A. Whaley, for appellee.

MAYFIELD J.

The complaint in this case contains 16 counts. The first and fourteenth are all that need be specially considered on this appeal. The eleventh, twelfth, thirteenth, fifteenth, and sixteenth counts were eliminated by charges or rulings of the court, and such rulings, being in favor of the appellant cannot be reviewed on this appeal; and, of course, other rulings as to such counts were without injury to appellant.

Counts from 1 to 10, inclusive, were all grounded on subdivision 1 of the employer's liability act (Code 1907, c. 80). Each declared upon the same defect in the ways, works, or machinery, to wit, a defective handhold on the engine or tender; the only difference being that the defect, or the negligent act, relied upon, is expressed in slightly varying and different language. The legal effect of each is practically the same, so far as to be considered together on this appeal.

Count 14 was bottomed on subdivision 3 of the employer's liability act.

Count 1 of the complaint was as follows:

"The plaintiff, W. H. Barganier, claims of the defendant Louisville & Nashville Railroad Company, a foreign corporation doing business in Covington county, Ala., the sum of $20,000 damages; for that the defendant on, to wit, the 26th day of December, 1907, operated a railroad in Covington county, Ala., on which it ran engines propelled by steam, and plaintiff was in the service or employment of said defendant on said date, and while he was engaged in or about the said service or business of the defendant on said date his left arm was caught under the wheels of an engine then being operated by the said defendant upon its railroad track in Covington county, Ala., and so badly crushed and injured that it had to be amputated, whereby plaintiff was caused to suffer great mental and physical pain and distress, was put to great trouble and expense in procuring medicine, medical attention, care, and nursing in and about his efforts to heal and cure his said wounds, and lost a great deal of time from his work and was crippled and maimed for life, and rendered permanently less able to work and earn money. The plaintiff avers that the said injury was sustained and his arm amputated as aforesaid by reason and as a proximate consequence of a defect in the condition in the ways, works, machinery, or plant used in or connected with the said business of the defendant, which defect arose from, or had not been discovered or remedied owing to, the negligence of some person in the service or employment of the defendant, and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition, in this, to wit, the handhold on the tender attached to said engine was broken."

Count 14 copied count 1 down to and including the words, "work and earn money," with the following addition thereto: "The plaintiff avers that the said injury was sustained and his arm caused to be amputated as aforesaid by reason and as a proximate of the negligence of H. R. Kirby, who was in the service or employment of the defendant while engaged in the discharge of his duties within the line of his employment, to whose orders and directions at the time of the injury the plaintiff was bound to conform and did conform, and his injury resulted from his having so conformed, in this, to wit: The plaintiff being upon the ground near the said engine of the defendant, and H. R. Kirby being upon the said engine, the said H. R. Kirby did negligently order the plaintiff to come to where he, the said Kirby, was upon the said engine."

Demurrers assigning many grounds were interposed to counts 1 to 10, inclusive, and to count 14, and were overruled as to each, to which rulings many errors are assigned.

Counts 1 to 10 each stated a good cause of action. Each practically followed the language of the statute, which is declared to be actionable negligence under subdivision 1 of the employer's liability act.

The counts appear to have been modeled after or copied from--as near as could be, under the particular facts of the case--counts heretofore held to be good under that particular subdivision. Watson's Case, 90 Ala. 41, 7 So. 813; Hawkins' Case, 92 Ala. 243, 9 So. 271; George's Case, 94 Ala. 199, 10 So. 145; Brewer's Case, 113 Ala. 509, 21 So. 415; Conrad's Case, 109 Ala. 133, 19 So. 398.

While these facts are very general and fall little short of mere conclusions, these cases hold that counts like these are sufficient.

These counts were not subject to any ground of demurrer interposed against them.

Count 14, however, was defective, and the demurrer to it should have been sustained. While it practically followed the language of subdivision 3 of the statute, as counts 1 to 10 followed subdivision 1, yet it does not show any breach of duty, or negligence on which to base a cause of action. It alleges no breach of duty, or negligence, on the part of the defendant or of its servants or agents. True, it alleges that Kirby and plaintiff were servants of defendant, and that Kirby...

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