Mary Lee Coal & Ry. Co. v. Chambliss

• Decision Date: 01 December 1892
• Citation: 97 Ala. 171,11 So. 897
• Court: Alabama Supreme Court
• Parties: MARY LEE COAL & RY. CO. v. CHAMBLISS.

11 So. 897

97 Ala. 171

MARY LEE COAL & RY. CO. v. CHAMBLISS.

Supreme Court of Alabama

December 1, 1892

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

Action by Nathan M. Chambliss, through his next friend, against the Mary Lee Coal & Railway Company for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.

This action was brought by the appellee, through his next friend against the appellant corporation. The first count of the complaint alleged that the injury resulted from the defects in the condition of the ways, works, machinery, or plant used in or connected with the said business of the defendant which defect arose from, or had not been discovered or remedied by reason of, the negligence of defendant, etc. The second count alleged that the injury resulted from the negligence of a person or persons in the service and employment of defendant, who then and there had the charge or control of said engine, and by reason of the negligence of a person or persons who then and there had superintendence intrusted to them, etc. It was also further alleged in the second count that the injury resulted from the negligence of a person to whose orders plaintiff was bound to conform, etc. The defendant demurred to each of these counts of the complaint, and, his demurrer being overruled, issue was joined on the plea of the general issue and contributory negligence. It was admitted by the defendant that the witness C.J. McCary would swear that, being a life insurance agent he was well acquainted with the tables used by life insurance companies in estimating the probable duration of life at any given age; that the American table of mortality was used for that purpose by nearly all the life insurance companies of the United States, and by other persons having occasion to estimate the probable duration of life at any given age; and that he would identify the tables offered in evidence as the American tables of mortality. The defendant objected to this testimony, and moved the court to exclude the same, on the ground that it was irrelevant. The court overruled this motion, and the defendant duly excepted. The defendant also objected and reserved an exception to the court's allowing to be introduced in evidence the American tables of mortality. In its oral charge to the jury the court instructed them, among other things, as follows: "Now you understand if the plaintiff was in the employment of defendant as fireman, and was under the control of the engineer, and subject to his orders, and the engineer ordered the plaintiff to throw the switch, and if he was guilty of negligence in so ordering the plaintiff to throw the switch, which resulted in the injuries complained of, then this would be such negligence as would make the defendant liable, if the plaintiff was guilty of no contributory negligence." The defendant duly excepted to the giving of this portion of the oral charge, and also excepted to the court's refusal to give several charges requested by it; but it is deemed unnecessary to set these charges out at length. There was a verdict for the plaintiff in the sum of $10,000 damages. Judgment having been rendered for the plaintiff, the defendant moved the court to set aside said judgment, and to grant it a new trial, upon the grounds that the verdict was contrary to the evidence; that the verdict of the jury was contrary to the weight of the evidence; that the verdict of the jury was contrary to the charges of the court; that the court erred in its oral charge to the jury; that the court erred in refusing to give the charges requested by defendant; and that the evidence was not sufficient to authorize a verdict of $10,000. The court overruled this motion for a new trial, and the defendant duly excepted. The defendant now brings this appeal, and assigns as error the various rulings of the lower court.

Smith & Lowe, for appellant.

Bowman & Harsh, for appellee.

COLEMAN J.

The plaintiff's action is in case, and brought to recover damages for personal injuries. The jury rendered a verdict for plaintiff, and assessed his damages at $10,000. The complaint contains two counts, and to each count separate demurrers were filed. The rule is that, though the pleading may be subject to demurrer, if it be not subject to the objections particularly assigned, the demurrer is properly overruled. Sledge v. Swift, 53 Ala. 110; Daniels v. Hamilton, 52 Ala. 105; Eads v. Murphy, Id. 520.

The first assignment as cause of demurrer goes to the sufficiency of the averments of negligence. We have frequently held that very general averments, little short of mere conclusions, meet all the requirements under our system of pleading. The authorities are collected in the case of Railroad Co. v. Davis, 92 Ala. 307, 9 South. Rep. 252. The grounds of demurrer directed to this supposed defect were properly overruled.

The second assignment raises the question as to whether plaintiff must aver affirmatively the exercise of due care on his part. This question has been ruled adversely to demurrant, and there was no error in the action of the court in this respect. Bromly v. Railroad Co., (Ala.) 11 South. Rep. 341. Neither of the assignments, as cause of demurrer, present the question of the joinder in the second count of a cause of action arising under subdivision 2 of section 2590 with one arising under subdivision 3 of the same section. See Dusenberry's Case, (Ala.) 10 South. Rep. 274.

There was no error in admitting in evidence the testimony of the witness McCary and the American tables of mortality. Manufacturing Co. v. Woodson, 11 South. Rep. 733, (present term.) We have invariably admitted these tables of mortality as competent evidence. They are not conclusive upon the question of the duration of life, but are competent, to be weighed with other evidence. The physical condition of the injured person at the time next preceding the injury, his general health, his avocation in life with respect to danger, his habits, and probably other facts, properly enter into the question of the probable duration of life.

The other assignments of error go to the correctness of a part of the oral charge given ex mero motu by the court, and to the refusal of the court to charge as requested by the defendant. The undisputed facts show that the plaintiff was a fireman employed by the engineer, to whose orders, as such, he was bound to conform, that the engine had just backed in on the main line from a side track, and that plaintiff left the engine for the purpose of throwing the switch, and while absent from the engine was run over and injured. The proof shows that the switchman in charge of this switch was absent from his place of duty. It is a disputed question of fact whether the plaintiff left the engine of his own accord, or was ordered by the engineer to leave the engine and throw the switch. The exact cause of the injury was also controverted the plaintiff claiming that on account of some defect in the construction of the switch he was unable to force it down to a horizontal position, so as to adjust it perfectly, and that, as the train moved forward, either by reason of the defect of the switch, or by reason of the wheels striking the rails of the switch in its then position, the lever of the switch was caused to fly up with such force as to throw the plaintiff on the track in front of the wheels, and he was in this way injured. Defendant's contention was that there was no defect in the switch, and that, after the engine had passed upon the main line, the plaintiff attempted to get upon the footboard to the tender of the engine while in a moving condition, and slipped and fell, and was run over. The evidence is sufficiently satisfactory to show that many well-regulated railroads used switches of a similar character and constructed exactly as the one in question. There is no evidence to show exactly in what the defect consisted, or how long it had continued, nor any evidence to show that the defect arose from, or had not been discovered or had not been remedied by reason of, the negligence of the defendant, or of some person in the service of the master, and intrusted with the duty of seeing that it was in proper condition, unless it be the bare statement of the plaintiff that he was not able to push the lever down to a horizontal position, and that it had a tendency to forcibly fly back when pushed down, and the further statement of the father that at some time the switch had been "overhauled;" but when,-whether before or after the injury,-the witness did not seem to know. How long the defect testified to by the plaintiff, if there was such defect, had...