Louisville & N.R. Co. v. Mothershed

• Citation: 110 Ala. 143,20 So. 67
• Parties: LOUISVILLE & N. R. CO. v. MOTHERSHED.
• Decision Date: 01 May 1896
• Court: Supreme Court of Alabama

20 So. 67

110 Ala. 143

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

Supreme Court of Alabama

May 1, 1896

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by W. H. Mothershed, administrator, against the Louisville &amp Nashville Railroad Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

This action was brought by W. H. Mothershed, as administrator of Thomas Edmunds, against the Louisville & Nashville Railroad Company, to recover damages for the killing of plaintiff's intestate, alleged to have been caused by the negligence of the defendant. The first count alleges that the cause of the death of the intestate was as follows: "And plaintiff's intestate, while in the discharge of his duties as engineer in charge of one of the defendant's engines, which said engine was connected with and carrying one of the defendant's freight trains, on said 18th day of May, 1891, on the defendant's said road, near Phelan station; that another train, being operated and run by said defendant, over its said railroad, was run into and collided with the train on which the plaintiff's said intestate was then riding, and in said collision plaintiff's said intestate was then and there killed, and received injuries from which he died immediately, by reason of the negligence of the conductor in charge and control of said train upon the defendant's said railway which collided with the train in which his said intestate was then situated." The negligence of the conductor is alleged to have been in a negligent failure to send a flagman back to notify approaching trains of danger, as it was his duty to have done. The second count is, in substance, the same as the first. The third and fourth counts are substantially the same as the first count. The fifth count of the complaint is substantially the same as the first, except "the person in charge or control of the train" is substituted for "the conductor" in each of said counts. The seventh count bases the right of recovery on the negligence of the flagman sent out to warn approaching trains of danger. The eighth count relies on the alleged negligence of the conductor of the train on which the deceased was engineer. The court charged the jury that there could be no recovery under the seventh and eighth counts of the complaint. In the sixth count of the complaint, the negligence complained of was alleged as follows: "And plaintiff avers that the death of his said intestate, or the injuries which resulted in his death, were caused by the negligence of some person in the charge of said freight train with which plaintiff's intestate's engine collided, which said person was then and there in the service and employment of the said defendant, and said freight train was detained or stopped on said railroad track at a place which was not a usual stopping place for said train, and that the person in charge thereof negligently failed and neglected to send out a flagman with the proper danger signals, or to take such other precautions against accidents as were usual and proper to be taken in such cases, as his duty required him to do, and give the plaintiff's intestate warning that said train had been so stopped on said railroad, and that plaintiff's intestate's said engine, without fault on his part, ran into and collided with said freight train, which caused the injuries and death aforesaid. Wherefore plaintiff sues." The following facts were proven without contradiction: That the plaintiff's intestate, at the time of his alleged injuries, which caused his death, was an employé of the defendant, and had charge and control of one of its engines drawing the second section of a freight train; that the first section of said freight train had been disabled for some cause, or was necessarily detained longer than it should have been, at the water tank at Phelan; that, while said first section was detained at Phelan, and was occupying the main track of the defendant's railroad, the said second section approached said station at a rapid rate of speed, and ran into the said first section, which caused the injuries to plaintiff's intestate, of which he died in a few hours thereafter; that the second section passed through Cullman at a rate of speed from 25 to 30 miles per hour; that it is down grade from Cullman to Phelan station, and Phelan station is about two miles distant from Cullman; that the second section ran into the first section on the 18th day of May, 1891 about daylight; that the defendant's road is perfectly straight for over one mile north of Phelan, and to within 100 or 120 feet of the caboose of the train standing at Phelan that the said second section struck the first section with great force, and wrecked a large number of cars; that, on the 9th day of May, 1891, the defendant delivered to Edmunds, the deceased, time-table No. 22, which was to go into effect and force at 3 o'clock p. m. on the next day, the 10th day of May, 1891; that said time-table contained the printed rule set out in the fifth plea of the defendant; that said Edmunds signed a written agreement, at the time said time-table was delivered to him, as set out in said fifth plea of defendant; that said time-table was in force on the day of the alleged accident, and continued in force for several months thereafter; that all the engineers of the defendant were required to have one of said time-tables; that, at the time of the alleged accident and injuries, the defendant was having its railroad operated under said time-table; that Phelan station was a time-table station on the defendant's railroad, and was at the time of the alleged injuries; that said Phelan station was a water station, and a regular stop for all trains of the defendant. The defendant pleaded, first, the general issue, and five special pleas. The second plea, as amended, and as copied in the transcript, was as follows: "(2) The defendant, for further answer to the complaint, says that the plaintiff's intestate's injury was caused by his negligent violation of a rule of the defendant, known to plaintiff's intestate, which required him, as engineer, to approach time-table stations with his train under control, expecting to find main track occupied; and the defendant avers that Phelan station is a water tank, and was at the time of the alleged injury to the plaintiff's intestate a time-table station on the defendant's railroad; and defendant avers that the plaintiff's said intestate approached said station at such speed that he could not control said train, and ran into a train of the defendant standing on the main track, which proximately contributed to the alleged injuries to the plaintiff's intestate." The substance of the other pleas, the rulings thereon, and the other facts of the case are sufficiently stated in the opinion. Among the charges requested by the defendant, to the refusal to give each of which it reserved a separate exception, was the following: (1) "If the jury believe the evidence, they will find for the defendant." There were verdict and judgment for the plaintiff, assessing his damages at $4,418. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Hewitt, Walker & Porter and Walker, Porter & Walker, for appellant.

Lane & White, for appellee.

HEAD J.

The sixth count of the complaint identifies the person alleged to have been guilty of the negligence causing the injury as the person in charge of the particular freight train which had been stopped on the track, at the specified time and place and with which intestate's train collided. We deem it unnecessary to decide whether or not this is a sufficient identification of the person charged with the negligence. See Railroad Co. v. George, 94 Ala. 214, 10 So. 145. The amendment of the second plea, after demurrer sustained, by which the words, "known to plaintiff's intestate," were inserted, was necessary to make the plea good; and the demurrer to the plea, as the latter was originally filed, was properly sustained. By the ruling of the court on demurrer, the defendant was required to amend its third plea by inserting the word "negligently" where the same occurs in the plea as copied in the transcript; and to amend its fourth plea by inserting the words, "and negligently violated said rule as hereinafter set forth," where those words appear in said plea, as copied. These pleas set up, in terms, a rule of the defendant known to plaintiff's intestate, in force at and before the injury, and applicable to the place of the injury, which was a water station, and to the train of which plaintiff's intestate was engineer, at the time he was killed by the collision of that train with another, by which rule it was required that such trains must approach such stations "under control, expecting to find the main track occupied." The violation of this rule by the plaintiff's intestate, as engineer of the moving train, proximately contributing to his death, is alleged. The demurrer takes the position, and it is supported here by earnest argument by counsel for appellee, that the mere violation of the rule, proximately contributing to the injury, was, without more, insufficient to render the engineer culpable, in such sense as to affect his personal representative's action for the defendant's negligence causing the injury; that the failure to observe the rule must have been either an expressly willful default, exerted without regard to the danger intended by the rule to be provided against,, or that the promulgation of the rule invested the engineer with a reasonable discretion in respect of its observance, to be exercised as an ordinarily prudent person would have done under the circumstances; and that it was, therefore, necessary that...