Louisville & N.R. Co. v. Bouldin

• Decision Date: 21 May 1896
• Citation: 110 Ala. 185,20 So. 325
• Parties: LOUISVILLE & N. R. CO. v. BOULDIN. [1]
• Court: Alabama Supreme Court

20 So. 325

110 Ala. 185

LOUISVILLE & N. R. CO. v. BOULDIN. ^[1]

Supreme Court of Alabama

May 21, 1896

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

Action by Sallie M. Bouldin, administratrix of the estate of Richard Bouldin, deceased, against the Louisville & Nashville Railroad Company, to recover damages for the death of plaintiff's intestate. There was a judgment for plaintiff, and defendant appeals. Reversed.

Sallie M. Bouldin, as administratrix of Richard Bouldin, deceased brought the present action against the Louisville & Nashville Railroad Company, the appellant, to recover for the alleged negligent killing of her intestate, who was an employé of the defendant, and engaged as a switchman at the time he received the injuries that caused his death. The complaint contained five counts. The averments of the first count are sufficiently stated in the opinion. The second count was as follows: "And 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 (in front) of a moving engine in or near the defendant's yard in or near the said city of Decatur, in the discharge of his duty as such servant or employé of the defendant, his foot struck against an obstruction which had been negligently permitted to be and remain upon the defendant's roadbed, so as to be a peril to plaintiff's said intestate while so in the discharge of his duty, thereby causing him to be thrown to the ground, and to receive personal injuries which caused his death on or about the same day; and plaintiff shows that said obstruction arose from, or had not been discovered or remedied owing to the negligence of the defendant, or of some person in the service of the defendant, and intrusted by it with the duty of seeing that its ways, works, machinery, or plant were in proper condition." The averment of the third count was that while deceased was standing on the footboard of a moving engine, in the discharge of his duty, he was struck by an obstruction negligently permitted to remain near the defendant's track, and that the injury was caused by reason of the negligence of Oakley in the superintendence intrusted to him, etc., he being yard master, and negligently permitting the obstruction to remain near the track. The fourth count alleged that the deceased was injured while serving upon the engine in obedience to the orders of the yard master, to whose directions the deceased was bound to conform, etc., and that the injuries were caused by the negligence of the yard master in directing the deceased to perform such service while the obstructionwas negligently permitted to remain near the track. The fifth count of the complaint was as follows: "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." The defendant demurred to the first count on the grounds in substance (1) that the oil box was not a defect in the condition of the ways, works, plant, etc.; (2) because it appeared that the oil box was a foreign substance, in no way affecting the condition of the works, etc.; (3) because the count is insufficient, and shows no cause of action; (4) because the count does not aver that the oil box was left where it was by any one for whose action defendant is or would be responsible. The defendant demurred to the second count on the grounds in substance (1) because it does not aver that the person intrusted by the defendant with the duty of seeing that its works, etc., were in proper condition, was some one other than the plaintiff's intestate; (2) because it was not averred that the obstruction was left where it was by any one for whose action the defendant was responsible; (3) because the count did not allege the name of the person intrusted with the duty of seeing that defendant's ways were in proper condition. It is not necessary to notice the demurrers to the third and fourth counts, as they are not insisted on in argument of counsel. Defendant demurred to the fifth count (1) because it did not aver that the oil box was left where it was by any one for whose action the defendant was responsible; (2) because the count did not allege that the engineer knew plaintiff's intestate was in a position on the engine to be exposed to peril by reason of the alleged obstruction; (3) because the count does not aver the facts of which said alleged negligence of the engineer consisted in running the engine past or by said obstruction. These demurrers to the complaint were overruled. The defendant pleaded the general issue and several special pleas, setting up the contributory negligence of the plaintiff's intestate. The plaintiff demurred to the second and sixth special pleas, which were sustained, and upon the other pleas issue was joined.

The evidence shows that the plaintiff's intestate was killed on August 3, 1892, about 9:30 o'clock, in the shop yard of 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 Roberston who was foreman 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 shop, was an oil box. An oil box is a box that belongs over 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. This box has a lid over it, and is placed just above the wheels of the car, and is made of heavy material,-cast iron. They are usually about 14 inches long and from 8 to 10, perhaps 12, inches high, and about 6 or 8 inches from the side. The oil box was 13 1/2 inches from the rail by measurement, and the footboard stands about 12 inches beyond the rail, and it cleared the oil box as the engine passed it. 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 of 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 repair shops, to couple on some cars there. After this coupling was made, the engine and cars started, the engine moving in front, 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 switchboard, 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 switch board, must have climbed or passed over the coupling which connected the tender with the cars. It was a matter of dispute whether the accident was caused by his falling off the switchboard when attempting to cross over, or whether his foot struck the oil box. The evidence is uncontradicted that the oil box did not appear to have been moved. There was no trace of its having been moved in the cinders which were spread in between and along the tracks. There were, however, impressions on the oil box which might have been made by a man's shoe coming in contact with it, or it might have been caused by the wreck or handling of the oil box afterwards. The only two eyewitnesses to the accident were Robertson and Harbin, who was the engineer on the engine at the time. The engineer Harbin testified that, as he was backing in, he saw this oil box, which was two or three car lengths from the repair shop to which the engine was backing. He accordingly slowed up the speed of the engine, "so it was barely moving," until engine passed the oil box, and, finding that the footboard would clear the oil box, then went on. He did the same thing after the accident, and each time the oil box cleared the end of the footboard an inch or more. When the engine backed past the oil box, Bouldin and Robertson were...