Louisville & N.R. Co. v. Mothershed

• Decision Date: 05 January 1893
• Citation: 97 Ala. 261,12 So. 714
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. MOTHERSHED.

12 So. 714

97 Ala. 261

LOUISVILLE & N. R. CO. v. MOTHERSHED.

Supreme Court of Alabama

January 5, 1893

Apppeal from city court of Birmingham; William W. Wilkerson, Judge.

Action on the case by Wade H. Mothershed against the Louisville &amp Nashville Railroad Company for personal injuries alleged to have been suffered by plaintiff, an employe of defendant, by reason of the negligence of defendant's servants in the management of one of its trains, or by reason of defective ways, works, machinery, or plant. There was a verdict for plaintiff for $10,000, and from the judgment rendered thereon defendant appeals. Reversed.

The complaint consisted of four counts the last of which was added by way of amendment. Demurrers were interposed to the first three counts, which were overruled by the court, and the case was then tried on the general issue. The first count averred that plaintiff was riding on a train of defendant as an employe in the yard of defendant in Birmingham, and that one of the cars of the train on which he was riding was derailed by reason of defects in the ways, works, machinery or plant of defendant, to wit, the said car was defective the machinery, means, or appliances by which the body of said car was attached to the running gear or trucks thereof was defective; one of the rails of the track upon which said train was, at or near the point of said switch, was defective; the said switch was in a defective condition; the means and appliances for stopping said engine were defective. The grounds of demurrer to this count were that the defects alleged were not pointed out, but the count simply stated that the car, engine, etc., were defective; that there were no facts alleged showing that, or how the defective condition caused the derailment of the train; and that the count was repugnant in averring-First, that plaintiff's injury was caused by a defective car; second, by a defective rail third, by a defective switch; and, fourth, by defective means of stopping the engine. The second count averred that plaintiff's injury was caused by the negligence of a person in charge or control of an engine in running it at the rate of 15 miles an hour, in pushing it along the track to a switch without seeing that the switch was properly set, and in negligently failing to stop or slacken the speed thereof. The grounds of demurrer were repugnancy in this: that the cause of the injury was attributed-First, to excessive speed second, by pushing the car along the track without the switch being properly set; third, on account of the negligent failure to stop or slacken the speed of the train; also because it was not averred to be the duty of the person in charge of the engine to see that the switch was set right; also because it was not averred with sufficient certainty how the negligence complained of caused the injury. The third count averred that plaintiff's injury was caused by the negligence of a person who had the superintendence of the train intrusted to him, to wit, the yard master, in this: that he negligently caused or permitted said train to run at a great rate of speed, to wit, 15 miles an hour; that he caused or permitted it to run along the track to the switch without the switch being properly set; that he failed to stop or check the speed of said train. The grounds of demurrer to this count were substantially the same as to the second count, and, in addition, that it is not alleged in said third count that it was the duty of the yard master to stop or check the speed of said train. To the fourth count the same grounds of demurrer were interposed as to the third, and overruled.

The evidence introduced on the trial of this cause tended to show that plaintiff was in the employ of defendant at the time of the accident complained of in the capacity of foreman of a switch engine. That his crew consisted of the engineer, fireman, and three switchmen. That about 4 o'clock of the morning of the accident, plaintiff, in the discharge of his duty, started with his crew from a point between Thirteenth and Fourteenth streets in the city of Birmingham, switching two cars,-a flat car next to the engine, and a box car in front of the flat car. That plaintiff and a switchman were on top of the box car, and one McNutt, who was yard master, and superior in authority to plaintiff, was riding on the engine. Plaintiff was subordinate to and subject to orders of Jennings, who was assistant yard master, as well as McNutt, the yard master; but he himself had control of the engine and crew for the purpose of switching cars, and the engineer was bound to obey his signal, as was the switchman. That after leaving a point between Thirteenth and Fourteenth streets, going east, the engineer ran his engine at the rate of speed from 12 to 20 miles an hour. That on crossing Eighteenth street plaintiff signaled the engineer to go slower, which was obeyed, reducing the speed to four or five miles an hour. That after crossing Eighteenth street plaintiff signaled the engineer to come ahead, and thereupon the engineer quickened his speed to 15 or 20 miles an hour; and that, about 390 feet east of Eighteenth street, the cars, running at the rate of 15 to 20 miles an hour, ran into an open switch, and were derailed, which accident caused the injury to plaintiff, which necessitated the amputation of his arm, and other personal injuries. The testimony for plaintiff further tended to show that there was a rule or regulation of defendant company forbidding the engineer to pass through a switch without stopping, and that there was an ordinance at the same time in force in the city of Birmingham limiting the rate of speed to eight miles an hour within the corporate limits, and that this accident happened within the city limits. It was also proven by plaintiff that while the yard master, McNutt, was on the engine, and operating it, between Thirteenth and Fourteenth streets, in switching, the steam brake was broken, and this was known to the assistant yard master, Jennings, as well; that on leaving Thirteenth street, going east, the yard master; McNutt, was on the engine, operating it; that after crossing Eighteenth street, and upon the acceleration of speed, plaintiff signaled the engineer to go slower, and immediately thereafter gave him the stop signal; that the switchman Dixon, who had gotten down on the side of the car, also signaled the engineer to stop, but the speed of the train was not lowered in response to either of these signals. Plaintiff also introduced evidence tending to show that the engineer and McNutt, the yard master, both knew where the switch in question was located. The testimony for defendant tended to show that no signals were given by any one from the top of the car after leaving Eighteenth street, except the signal of plaintiff to come ahead; and that the engineer, while keeping a continuous lookout, had never seen any signal from either plaintiff or the switchman Dixon; that the engineer did not know prior to the accident whether the switch was open or not, and that the engineer was operating the engine at the time of the accident; that a train going at the rate of speed testified to could not have been stopped in time to have avoided the accident after the giving of the signal testified to by plaintiff, and that the engineer was bound to obey the signal of the foreman. It was admitted by counsel for plaintiff in open court that there could be no recovery for the defective steam brake, and the court gave the general affirmative charge in favor of the defendant in reference to the first count of the complaint.

Upon the examination of plaintiff as a witness in his own behalf he testified that he was in charge of the engine and crew and had charge of the engine, and then said: "You can have charge of an engine in two ways when it is in motion. The engineer has the running of it." The counsel for plaintiff then asked him the following question: "Did you know anything about running an engine?" Defendant objected to this question, because it was immaterial, and duly excepted to the court's overruling his objection. Upon the witness answering that he did not, defendant moved to exclude the answer, and duly excepted to the court's overruling his motion. Plaintiff, after having testified as a witness that he had been in the railroad business as brakeman, switchman, and foreman for eight or nine years, was asked by his counsel the following question: "What would be the result if a car should run over a switch like the one in question?" Defendant objected to this question on the ground that the witness was not an expert, and duly excepted to the court's overruling his objection. The witness answered that "a heavily loaded car would throw the switch by running through it." Defendant moved to exclude the answer, and also duly excepted to the court's overruling his motion. Plaintiff was then asked this question: "What if the car was empty?" and answered, "An engine and empty flat and box car would not likely throw the switch, unless running very slow." Defendant then moved to exclude the answer to this question. The motion was overruled, and defendant excepted. After plaintiff had testified that he did not know whether there were any written rules as to running through switches, he was asked by his counsel the following question: "State whether or not at that time it was the custom and practice of the L. & N. R. R. Co. for engineers to stop before passing through switches." Defendant objected to the question, because it was illegal, immaterial, and irrelevant, and duly excepted to the court's overruling his objection. Plaintiff answered that "it was the custom to stop, of course." Defendant excepted to the court's overruling his motion to exclude this answer to the...