McDonald v. Alabama Midland Ry. Co.

• Decision Date: 06 June 1899
• Citation: McDonald v. Alabama Midland Ry. Co., 123 Ala. 227, 26 So. 165 (Ala. 1899)
• Parties: MCDONALD v. ALABAMA MIDLAND RY. CO.
• Court: Alabama Supreme Court

26 So. 165

123 Ala. 227

MCDONALD v. ALABAMA MIDLAND RY. CO.

Supreme Court of Alabama

June 6, 1899

Appeal from circuit court, Dale county; J. W. Foster, Judge.

Action by J. F. McDonald, administrator of the estate of Jesse L McDonald, deceased, against the Alabama Midland Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

On the trial in which the judgment now appealed from was rendered the complaint contained only the fifth count. There were demurrers to this court, which were sustained. The judgment entry in reference to such ruling is copied in the opinion. After the rulings upon the demurrer to the fifth count of the complaint as originally filed, there was then an amendment to the first count of the complaint, which was substituted for the original count. Pleas was interposed to this count, and the trial was had upon issue joined upon said pleas. The allegations of said count and the other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the defendant, gave to the jury the general affirmative charge in its behalf, to the giving of which charge the plaintiff duly excepted. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Borders & Carmichael, R. H. Walker, and Espy & Farmer, for appellant.

A. A Wiley, for appellee.

TYSON J.

There was no judgment upon the sustaining by the court of the demurrer to the fifth count of the complaint. The judgment entry simply recites, "The defendant thereupon demurred and assigned several separate and distinct grounds of demurrer, as shown by the record, which demurrers, having been argued by counsel and understood by the court, were, by the court, duly sustained." The judgment entry should have proceeded further, and shown a formal adjudication by the court, such as, "It is therefore considered by the court that the demurrers be, and they are hereby sustained." There being no judgment upon them, we must decline to consider the correctness of the rulings of the court with respect to them, and, if this was all that appeared in the record for review, the appeal would have to be dismissed. Mercantile Co. v. O'Rear, 112 Ala 247, 20 So. 583; Morgan v. Flexner, 105 Ala. 356, 16 So. 716; Park v. Lide, 90 Ala. 246, 7 So. 805; Baker v. Swift, 87 Ala. 530, 6 So. 153. The case was tried upon an amendment to the first count of the complaint, which appears as a substitute for the original, the pleas of not guilty and contributory negligence, and other pleadings, which it is unnecessary to consider in determining the question presented. The plaintiff relied for a recovery upon the negligence of the engineer. After reciting in the complaint the fact of employment by defendant of plaintiff's intestate, and the order to him by the conductor in charge of the train to make a second coupling, the conductor to make the first, known as a "double coupling," and the location of the cars with relation to each other and to the engine, and the position assumed by the conductor and plaintiff's intestate for the purpose of making the couplings, the complaint alleges the negligence of the engineer to consist in pushing "his engine back against a lot of loose cars without having his engine at the time coupled to the same, or, if coupled, the said engineer cut loose from the same before they reached the first-named two cars where the first coupling was to be made; that said engineer, Hayden, reversed said engine contrary to the rules of said defendant, and pushed with force against said cars just before cutting loose said engine, and left them going on a down grade, without the protection of the engine to hold the cars when they should strike, which it [they] did with such force as, without this protection to the conductor, to cause him to fail and refuse to make the first coupling; that said negligence of said engineer in cutting loose his engine at the time alleged, knowing that no brakeman was on the train to stop it, and that the said engineer knew it, or by the exercise of a proper observance, which it was his duty to do under the circumstances, he would have known it, and known that the deceased, McDonald, was between the cars to be coupled for the purpose of making the coupling, which was the business in which the engineer and brakeman at the time were engaged, as well as the deceased, and which caused the death of said McDonald; that the plaintiff's intestate, in obedience to the orders of said conductor, who, under the rules of said defendant, was bound to obey, was already between said cars, or so near thereto that he could not foresee this last-named danger of the cars coming back without being attached to the engine, and, having a right at the time to believe...