Louisville & N.R. Co. v. Davis

• Citation: 91 Ala. 487,8 So. 552
• Parties: LOUISVILLE & N. R. CO. v. DAVIS.
• Decision Date: 11 December 1890
• Court: Supreme Court of Alabama

8 So. 552

91 Ala. 487

LOUISVILLE & N. R. CO. v. DAVIS.

Supreme Court of Alabama

December 11, 1890

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

This is an action brought against the appellant railroad corporation by the appellee, William E. Davis, a minor, by his next friend; and seeks to recover damages for personal injuries sustained by the plaintiff on account of the alleged negligence of the defendant. The complaint contained four counts. To the complaint as a whole, and to each of the counts separately, pleas were interposed by the defendant. There was pleaded the general issue, contributory negligence and the following special pleas: "(6) The defendant, for further answer to the complaint, says that the car which it is alleged caused the injury to plaintiff did not belong to defendant, but to some other railroad; that said car was condemned by defendant's car inspector for repairs; that in order to repair said car, the same was switched upon the side track, on which stood the car on which the plaintiff was at work at the time of the alleged injury; that said car was condemned, not on account of any defective brake, but on account of some defect in the wheel of the truck; that said brake on said car had every appearance of being in good working order, and defendant's employes in control of said car used due diligence to discover whether or not the brake on said car was in proper condition, and failed to discover that said brake was defective; and defendant avers that its employes in charge and control of said car used due and proper caution and diligence in the management of said car, and defendant avers that the alleged injury to plaintiff was caused from the brake on said car not working properly which defect in said brake did not arise from any negligence of defendant or an employe of defendant intrusted by defendant with the duty of seeing that said brakes were in proper condition, and said defect in said brake had not been discovered by defendant or its employes intrusted by defendant with the duty of seeing that said brakes were in proper condition, through any negligence of defendant or of said employes intrusted by defendant with the duty of seeing that said brakes were in proper condition; and defendant avers that its employes in charge of said car used due diligence in the management of said car, and did all in its power to prevent the alleged injury to plaintiff. (7) The defendant, for further answer to the first count of the complaint, says that the car which it is alleged in said count had a defective brake, and which it is alleged caused the injury to plaintiff, was, at the time of the alleged injury, being switched upon the track where stood the car on which plaintiff was at work at the time of the alleged injury, for the purpose of repairs; and defendant avers that said car was not the property of defendant, and that it was necessary to repair said car, and, in order to repair the same, it was necessary to place it on the said track, so as to carry it to the shops of defendant for repairs." The plaintiff took issue on all the pleas except the sixth and seventh, and to these he filed demurrers as follows "Plaintiff demurs to the sixth plea, and assigns the following grounds of demurrer: (1) That said plea purports to be an answer to the entire complaint, whereas it only sets out facts which are an answer to the first count of the complaint if, indeed, an answer to any of the complaint. (2) That said plea alleges that the car which caused the injury to plaintiff did not belong to defendant; but said plea fails to allege that said car which caused said injury was not connected with or used in the business of the defendant at the time of the alleged injury. Plaintiff demurs to the seventh plea, and assigns the following grounds: That said plea fails to allege that said car which caused said injury was not connected with or used in the business of the defendant at the time of the alleged injury." The court sustained these demurrers, in reference to which ruling the judgment entry contains the following statement: "And the plaintiff demurs to pleas numbered six and seven, which demurrers, being argued and heard by the court, are sustained, the matters provable under said pleas being provable under the general issue pleaded by the defendant." This ruling constitutes one of the assignments of error.

The plaintiff was a minor over the age of 14, and was at work for the defendant in the capacity of repairing cars. The accident occurred, as is shown by the tendency of the evidence, upon what is called the "repair" or "dead" track, which track is used for placing cars on when they need repair. At the time of the accident there was standing on this repair track a flat-car, or "gondola," and attached to it a caboose-car, and upon the latter the plaintiff was working. In order to repair the car properly it was necessary for the workman to get under the car, and the plaintiff had done this, and was working under the car, as he had been directed to do, together with his father, who, at the time of the accident, was absent. Before going to work under the car, the plaintiff had put upon the "gondola"-the car in front of the one on which he was working-a blue flag, which, under the rules and regulations of the defendant, signified that men were at work upon the cars behind it; and this flag was on the "gondola" at the time of the accident. McNutt was assistant yard-master, as is shown by the evidence, and as stated in the opinion; and in the discharge of his duties was superintending the putting of a car, which was not the property of the plaintiff, on the repair track for repairs. In doing this he had the engineer to make what is known as a "running switch," which was done by the engine giving the car a "kick," putting it in motion, and, while the car is thus in motion, the switch is thrown open, and the loose car goes in on one track, and by throwing back the switch the engine goes on another track. When the car in question was thus run down on the repair track it was running at a speed of eight or ten miles an hour, and McNutt alone was on top; and, upon trying to apply the brake, he was unable to stop the car before it came in collision with the cars standing on the repair track, and under one of which the plaintiff was at work. As the result of this collision, the plaintiff was run over, and dragged along the track under the car on which he was at work, his right arm being so badly mangled thereby that amputation was necessary, and he also lost two fingers on his left hand. McNutt had, at this time, but one arm; and testimony was introduced to show his capacity "to set" a brake, to which there were objection and exception. It was also testified that the car which caused the collision was examined, and there was no defect in its brakes.

Among other things, the court charged the jury, in its general charge: "That, if under the principles of law given them by the court as to what constitutes negligence, they should believe from the evidence that the plaintiff's injuries resulted from the negligence of the engineer in charge of the engine which was used in putting the car on the repair track then the averments of the complaint are sufficient to authorize a recovery by the plaintiff for such negligence." To the giving of this charge the defendant duly excepted; and also separately and severally excepted to the court's refusal to give the following written charges, which were requested by it: "(1) I charge you, gentlemen of the jury, if you believe from the evidence that McNutt was not guilty of negligence, then you must find for the defendant." "(4) If you believe the evidence, you must find for the defendant under the first count of the complaint." The fifth, sixth, and seventh charges, were general charges on the second, third, and fourth counts of the complaint, respectively; and the third charge was the general affirmative charge. "(8) If you believe from the evidence that the proximate cause of the injury to the plaintiff was that the brake was defective, or that the brake failed to act when it was applied by McNutt, then you must find for the defendant under the second count of the complaint. (9) If you believe from the evidence that the proximate cause of the injury to the plaintiff was that the brake was...