Louisville & N.R. Co. v. Johnson
| Decision Date | 24 May 1909 |
| Citation | 50 So. 300,162 Ala. 665 |
| Parties | LOUISVILLE & N. R. CO. v. JOHNSON. |
| Court | Alabama Supreme Court |
Rehearing Denied June 30, 1909.
Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.
Action by Walter H. Johnson against the Louisville & Nashville Railroad Company for injury. From a judgment for plaintiff defendant appeals. Affirmed.
The pleadings are fully discussed in the opinion. The following charges were refused to the defendant: (1) Unnecessary to be set out. (2) "If the jury believe from the evidence that the plaintiff at and before the time of his accident and injury knew that no trains could approach him on the track on which he was running the engine that struck him from the east when the south-bound main line was occupied by a train, and if the jury further believe from the evidence that such was the fact, then the plaintiff would not be excused from looking in the direction from which came the engine that struck him by the fact, if the jury believe from the evidence that it was a fact, that he was looking in an opposite direction." (3) "If the jury believe the evidence they must find from it that the plaintiff was himself guilty of negligence." (4) Same as 3, and adds: "Which proximately contributed to his injury." (5) "If the jury believe from the evidence that the plaintiff could have by looking and listening, discovered the approach of the switch engine in time to have gotten out of the way of it before being struck by it, then the plaintiff was himself guilty of negligence." (6) "If the jury believe the evidence, they cannot find from it that the defendant was guilty of wanton or intentional negligence." (7) "If the jury believe the evidence in this case, they cannot find from it that at the time of the plaintiff's injury he was entitled to the measure of care that defendant owed to its employés by law." (8) "The plaintiff in this cause at the time of his injury did not occupy with reference to the defendant the relation of an employé, so as to entitle him to demand the measure of care and duty from defendant that the law exacts of defendant in the management of its engines and trains in favor of its employés." (9) "I charge you that, if you believe the evidence in this case, you cannot find from it that the plaintiff, at the time of his injury, occupied the relation of employé as against the defendant in such sense as to entitle the plaintiff to demand of defendant the measure of duty that defendant owed to its employés in the management of its train and engines." (10) "If the jury believe the evidence and find for the plaintiff, they can only award the plaintiff nominal damages, unless they believe from the evidence that the plaintiff's injury was proximately caused by the wanton or intentional negligence of the defendant." (11) Affirmative charge as to thirteenth count. (12) Same as to fourteenth count. (13) The general affirmative charge. (14) Affirmative charge as to first count. (15) Same as to second count.
The following is a portion of the oral charge excepted to "After discovering a person in dangerous proximity to the track or on the track, it would be the duty of the person in charge or control of the engine to take such steps as will avoid injuring the person upon the track, and a failure to do so would be negligence on the part of the person in charge of the engine."
Tillman, Grubb, Bradley & Morrow, for appellant.
Gaston & Pettus, for appellee.
Action for personal injuries. Counts 1, 2, 13, and 14 were those submitted to the jury. Counts 1 and 13 ascribe the injury suffered to negligence attending the operation of an engine and cars at or near a public street crossing in the city of Birmingham. Counts 2 and 14 purport to impute the injury to willful or wanton misconduct on the part of those in control of the engine and cars on the occasion.
The appellant complains of the ruling below holding that counts 2 and 14 were not defective, in that they were silent in the essential averment that the agents or servants of the defendant were acting within the scope of their employment at the time the injury occurred. The demurrer to count 2 was comprised of these grounds: (1) That the misconduct was not alleged with sufficient certainty; (2) that the averment of wanton or intentional misconduct was not sufficient. Under our statute (Code 1907, § 5340) it is evident that these grounds of demurrer did not specify the objection stated above. They were general, and were, hence, properly overruled.
The sixth ground of demurrer to count 14 accurately specified the mentioned objection to this count. It is properly conceded, in substance, in brief for appellant, that there are no patented words for charging the misconduct imputed to have been committed or omitted "within the scope of the servant's employment"; but it is correctly insisted that such fact must appear in a count in such cases, in order to render it immune from demurrer taking the objection. This count did not contain the express averment referred to. Does it contain allegations of fact comprehending it? We are of the opinion that it does. It is averred that the defendant was engaged, in July, 1906, in the business of operating a railroad and running thereon engines, etc., for transporting persons and things for hire; that "defendant's servants or agents then and there operating an engine, to which were attached cars, wantonly or willfully caused or permitted the same to run upon or against plaintiff," thereby injuring him. The former averment is the basis for the latter, and the latter cannot be interpreted without reference to the former. The latter necessarily refers to the business in which the defendant was engaged, as portrayed in the former averment, and the conduct of the servants or agents in the operation of the engine, with cars attached, necessarily implies that those operating the engine and cars were doing so in the course of business in which the defendant was engaged. To take the latter averment as capable of describing agents or servants of the defendant usurping the function of exercising, for the master, a proper control and use of one of its engines, with cars attached, and to this we are urged for appellant, would be, it seems clear to us, to ignore the antecedent averment of the business pursued by the defendant, and in immediate connection with which the latter averment is employed, descriptive of a damnifying result attending the operation "then and there" of one of defendant's engines, etc., in the physical control of servants or agents of the defendant. The argument for appellant does not, we think, take due account of all of the averments of the count, but rather would turn the interpretation of the count on the single averment describing the misconduct of the defendant's servants or agents. A count must be construed as a whole. A. G. S. R. R. Co. v. Williams, 140 Ala. 230, 37 So. 255, cited for appellant, dealt, in the particular sought to be applied on this appeal, with a cause of action attempted to be stated under subdivision 5 of the employer's liability act (Code 1907, § 3910), whereby "charge" or "control" of any signal, point, etc., are required to be averred. That decision can have no bearing on the present inquiry, where the relation of master and servant is not relied on, in the pleadings submitted to the jury, to fix liability.
It is argued that count 14 was defective because of its omission to charge such actual knowledge on the part of the servants of defendant as would support wantonness, etc., in the act...
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