Louisville & N.R. Co. v. Fitzgerald

• Decision Date: 19 May 1909
• Citation: 49 So. 860,161 Ala. 397
• Parties: LOUISVILLE & N. R. CO. v. FITZGERALD.
• Court: Alabama Supreme Court

49 So. 860

161 Ala. 397

LOUISVILLE & N. R. CO. v. FITZGERALD.

Supreme Court of Alabama

May 19, 1909

Appeal from Circuit Court, Dallas County; B. M. Miller, Judge.

Action by Mamie M. Fitzgerald, as administratrix, against the Louisville & Nashville Railroad Company, for damages for the death of her husband. The action is based on the employer's liability act (Code 1907, § 3910). Plaintiff had judgment, and defendant appeals. Reversed.

The case was tried on the following counts:

(11) "Plaintiff, as administratrix aforesaid, claims of the defendant the sum of $50,000 damages, for that on, to wit the 27th day of March, 1907, defendant was operating a railroad from Selma, Ala., to Myrtlewood, Ala., and running and operating on said railroad trains of cars with locomotive engines attached thereto; that on said day, while plaintiff's said intestate, J. D. Fitzgerald, was in the service or employment of defendant as a locomotive engineer and engaged in or about the business of defendant, being upon a locomotive engine of defendant attached to a train of cars which was being operated and run from Selma towards said Myrtlewood, said engine was derailed about one-quarter of a mile west of Thomaston, in Marengo county, Alabama, and as a proximate consequence thereof plaintiff's intestate, who was at the time defendant's engineer on said engine, and engaged in or about his duties as such engineer, was so injured that he died. Said engine was derailed, and plaintiff's said intestate killed 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, one Ellis, negligently allowed a car to remain in a train of cars of which he was conductor and be run along the track of the same, the brake beam, or brake rod, or brake fastening, of which was broken and liable to drop upon said track, well knowing that the train upon which plaintiff's intestate was the engineer would soon pass along and over said track and plaintiff avers that said brake beam, brake rod, or brake fastening did fall from said car upon said track, and the same was struck by the engine upon which defendant was engineer, and the same was derailed as aforesaid."

(12) Same as 11, except that the negligence is alleged to one Lasseter, the engineer in charge of the train from which the brake beam fell whilst he was in the exercise of his superintendence.

(13) Same as 11, down to and including the words "that he died" with this additional averment: "Plaintiff avers that said engine was derailed as aforesaid, and said intestate killed as aforesaid, as a proximate consequence of and by reason of the negligence of a person in the service or employment of defendant who had such superintendence intrusted to him, whilst in the exercise of such superintendence, viz., defendant's conductor, one Ellis, was operating and running defendant's train from Myrtlewood towards Selma, Ala., and in said train a car was being used that had a defective brake beam, or brake rod, or brake fastening, and the said conductor did negligently cause or allow the brake beam to fall from said car and upon the track, and there remain, and the engine and train which plaintiff's intestate was operating did strike said brake beam, brake rod, or fastening, and the said engine was derailed as aforesaid."

(14) Same as 13, except the negligence is alleged to Lasseter, the engineer.

(15) Same as 11, down to and including the words "of such superintendence," where they occur together therein, and adds the following: "Defendant's conductor, to wit, one Ellis, was operating and running defendant's train from Myrtlewood towards Selma, and in said train a car was being used that had a defective brake beam, or brake rod, or brake fastening, and the said conductor did negligently continue to operate and run such defective car, and the brake beam, brake rod, or brake fastening did fall from said car and upon the track of the defendant, and did there remain until the engine and train which plaintiff's intestate was operating did strike said brake beam, brake rod, or brake fastening, and the said engine was derailed as aforesaid."

(16) Same as 15, except that the negligence is alleged to Lasseter, the engineer.

(18) Same as 11, down to and including the words "that he died," with the following added averment: "Plaintiff alleges that said engine was derailed and plaintiff's intestate killed by reason and as a proximate consequence of the negligence of one Ellis, a person in the employment of defendant, in this: That said Ellis was at such time the conductor and had charge or control of a freight train of defendant, operating and being run at said time from Myrtlewood towards Selma upon the railway of defendant; that the brakebeam of one of the cars in said freight train, or brake fastening, or brake shoe, or brake rod thereof, had become broken or loosened, and had fallen off and from said car and onto the track of said defendant; that after the same had so fallen on and to said track the said freight train did, at Consul, about 5 1/4 miles from where said brake beam, or brake rod, or brake fastening, or brake shoe had fallen on said track, pass the passenger train of defendant, on the engine of which plaintiff's intestate was engineer, and although said conductor well knew that said brake beam, brake rod, brake fastening, or brake shoe had fallen on said track, and well knew that defendant's passenger train, on the engine of which plaintiff's intestate was engineer, would, after leaving Thomaston, necessarily run over and upon said track on which said brake beam, brake rod, brake fastening, or brake shoe had fallen, and although he had ample opportunity so to do, did negligently fail to so notify or warn plaintiff's intestate or other person in charge of said passenger train of the falling off of said freight train of said brake beam, brake rod, brake fastening, or brake shoe."

(19) Same as 18, except the negligence is alleged to Lasseter, the engineer.

The question to the witness Ford was: "State to the jury if you found anything the matter with either car in that freight train." The question was objected to by the defendant, and the objection overruled.

There was judgment for the plaintiff in the sum of $23,351.

Mallory & Mallory, James M. Foster, and George W. Jones, for appellant.

Pettus, Jeffries & Pettus, for appellee.

McCLELLAN J.

J. D. Fitzgerald was engineer in the employ of the defendant (appellant), and his run was between Selma and Myrtlewood. While en route, within his duty, from the former to the latter point, a short distance west of Thomaston, his engine struck a metal brake beam lying on the track, was derailed, and Fitzgerald was killed. The place from which the beam came may be assumed to have been a Pere Marquette car, No. 597, a foreign car, in a freight train of the defendant in progress from the west to Selma, and which train, opposing the train on which deceased was engineer, passed over the place whereat the beam was when the west-bound train struck it. Ellis was conductor of the east-bound freight train, and Lasseter was engineer thereof.

Counts 11 to 16, inclusive, and counts 18 and 19, were those on which the trial was had. Counts 11 to 16, inclusive, were intended to be drawn under the employer's liability act (Code 1907, § 3910), and each assumes to aver, in effect, a defect in the ways, works, machinery, or plant, but by express allegation ascribes the negligence, proximately causing the injury, to the negligence of either the conductor or engineer, respectively, of the freight train, while in the exercise of superintendence intrusted to him. None of these counts aver that the defect arose from, or had not been discovered or remedied owing to, the negligence of the master or of some person intrusted with the duty of seeing that the ways, etc., were in proper condition. It is doubtful whether the demurrers take the point, argued for appellant, that these counts are insufficient because of the absence of the indicated averment. Since a reversal must be entered for other reasons, it is not thought proper to decide the question. There is no merit in the other grounds of demurrer directed against these counts.

Each of the five subdivisions of the act, in connection with pertinent provisions of the last paragraph thereof, purport to and do afford separate causes of action where the injury suffered was in consequence of any one of the causes defined in the act; but, while this is undeniably true, it has become settled here that the pleader may, in a single count of the complaint, ascribe the injury suffered to concurrent coalescing breaches of duty under two or more subdivisions of the act, thereby constituting a single cause of action, and, having done so, he must, of course, sustain in the proof, not only the several negligences averred, but also that they each concurred to produce the injury complained of. H., A. & B. R. R. Co. v. Dusenberry, 94 Ala. 413, 10 So. 274; Armstrong v. Montgomery Street Ry., 123 Ala. 233, and authorities cited on page 246 of the opinion, 26 So. 349. This doctrine of the Dusenberry Case, as stated, does not conflict with that announced in Clement v. A. G. S. R. R. Co., 127 Ala. 166, 171, 28 So. 643, among others, namely, that two separate causes of action under the act cannot be joined in one count, because the pleader averts a violation of that sound rule by the ascription of his injury to the operation and effect of concurrent, coalescing breaches of duty under the act. Armstrong v. Montgomery Street Ry., 123 Ala. 246, 26 So. 349. It must and does follow from...