McNamara v. Logan

CourtSupreme Court of Alabama
Citation100 Ala. 187,14 So. 175
PartiesMCNAMARA ET AL. v. LOGAN.
Decision Date29 November 1893

Appeal from circuit court, Jefferson county; James B. Head, Judge.

Action by Vadre Logan, by next friend, against McNamara Bros., for personal injuries, alleged to have been inflicted by reason of defendants' negligence. From a judgment for plaintiff defendants appeal. Affirmed.

The first count of the complaint, after alleging the injuries inflicted on the plaintiff, further alleged that "plaintiff's said injuries were caused by reason of defects in the condition of the ways, works, machinery, or plant connected with or used in the said business of defendants, to wit, said cars were defective; said cross entry was defective. The said defects arose from, or had not been discovered and remedied owing to, the negligence of defendants, or of some person in the service of defendants and intrusted by them with the duty of seeing that the said ways, works, machinery, and plant were in proper condition." The defendants demurred to this count on the ground that said count does not designate the name or position of the person in the service of the defendants whose duty it was to see that the ways, works, and machinery were in proper condition. The court overruled this demurrer, and the defendants interposed five pleas, the first three of which were the general issue in various forms; the fourth the plea of contributory negligence; and by the fifth the defendants as a further plea alleged that up to the time this suit was brought, Frank Logan, the father of the plaintiff in the present suit, brought suit in the city court of Birmingham for himself "against these defendants for the identical injuries arising from the identical causes as the ones described in the above complaint, except that Frank Logan sought damages for the injuries to his son only during the minority of his said son; that heretofore said cause for the benefit of Frank Logan was tried in the city court of Birmingham, and judgment was rendered in the plaintiff's favor, and the amount of the damages awarded has been paid by these defendants; wherefore defendants make this plea in bar to above action." The plaintiff demurred to the fifth plea, on the grounds that the said plea shows (1) that the suit was brought by Frank Logan for his own benefit; (2) that the plea does not show that said suit was brought for the benefit of the present plaintiff; (3) the plea fails to show any satisfaction for the damages claimed by Vadre Logan in the present suit; (4) that the plea shows that the father sought to recover damages for injuries to his son during the minority of his son; (5) that the plea fails to show that the said suit sought the recovery of other damages than those to said father growing out of said injuries to his minor son. The court sustained these demurrers to the fifth plea, and issue was joined on the remaining pleas. The circumstances of the accident, as well as the tendency of the evidence, are sufficiently shown in the opinion.

Upon the introduction of Taylor Carroll as a witness for the plaintiff, he testified that he had been a miner for about 33 years; that he understood and was acquainted with the general construction of cross entries, having "driven" several himself; and that eight feet wide was the rule for cross entries, where there was a single track; and that it was the rule to have the space between the track and the side of the entry three feet, it being in some places more and in some less than this. Upon this testimony the plaintiff asked the following question: "Is it safe to have as little as a foot, or a foot and a half?" The witness answered it was not. The defendants objected to this question and answer, and moved to exclude them on the ground that the witness was not shown to be an expert on mining construction. The court overruled this motion, refused to exclude the answer, and the defendants duly excepted. Upon the introduction of Ed Carroll as a witness for the plaintiff he testified that the plaintiff took his place as driver in the cross section where he was injured. This witness further testified that he told Mr. Donahue not to put this plaintiff on the car to drive it, "as he was a strange driver, and would get killed. That he had not been there any length of time, and had not driven on the entry; and I told him that he would get the boy killed if he put him there. *** I told him that when I was leaving the entry. It must have been 10 or 15 minutes before he put Vadre in there." The defendants moved to exclude all this testimony as to what the witness told Donahue, and duly excepted to the court's overruling this motion. It was shown by the testimony that the present cross section was about seven feet wide, and that at the place where the accident occurred the track was within a foot or a foot and a half of the side of the entry. Upon the introduction of all the evidence the defendants requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them: (1) "I charge you, gentlemen, that if you believe the evidence your verdict must be for the defendants." (2) "Unless you find from the evidence that the tram cars driven by the plaintiff were defective, or that the width of the cross entry at the point at which he was injured was less than is the rule in well-regulated coal mines, your verdict must be for the defendants under the first count of the complaint." (3) "I charge you, gentlemen, that it was the duty of the plaintiff, Vadre Logan, to take into account the surroundings and perils attendant upon the nature of the service in which he was engaged at the time he claims to have received his injuries, [and which were open to his observation in the exercise of due care on his part,] and to bestow such care and watchfulness as an ordinarily prudent person would have exercised under like circumstances in reference to his own safety; and if you believe from the evidence that Vadre Logan, the plaintiff, when he started from the mouth or opening of number four room alongside of the cars descending by gravity, failed to exercise that degree of care, watchfulness, and caution in respect of his own safety in view of the surroundings that an ordinarily careful and prudent person would have exercised under like circumstances, then you must find in favor of McNamara Bros." The sentence in the brackets in the third charge was not in the charge as originally asked, but the court said that he would give the said charge if the defendants would insert the said sentence as it is copied above in the charge. The defendants refused to insert these words, and the charge was therefore refused.

J. Q. Cohen. for appellants.

Bowman & Harsh, for appellee.

McCLELLAN J.

Vadre Logan prosecutes this action by next friend to recover damages for personal injuries of a permanent nature sustained by him while in the service of McNamara Bros. in consequence of a defect in the condition of the ways, works, machinery or plant connected with or used in the business of the defendants. The complaint avers, in the language of the statute, that the causal defect "arose from or had not been discovered and remedied owing to the negligence of defendants, or of some person in the service of the defendants, and intrusted by them with the duty of seeing that the said ways, works, machinery, and plant were in proper condition." A demurrer to the complaint, assigning its failure to state the name of the person so intrusted, etc., was overruled. We think there was no error in this ruling. It was suggested by Clopton, J., in Railroad Co. v. George, 94 Ala. 199, 10 So. 145, that good pleading might require a complaint under subdivision 3 of section 2590 of the Code, counting on the negligence of a person to whose orders the plaintiff was bound to conform, and did conform, etc., to state the name of such person; but a decision of the point was expressly pretermitted. Without committing ourselves now to either view of that question, it is safe to say that there are considerations which would lead us to hold such averment necessary in the present complaint, drawn under subdivision 1 of the section referred to, which does not apply to a complaint under subdivision 3. And it is a noteworthy fact that the suggestion of Judge Clopton with reference to a complaint under this subdivision was not repeated, or at all made to apply, in respect to another count of the complaint in Railroad Co. v. George, which was drawn under subsection 1, and did not state the name of the person who had been intrusted with the duty of seeing that the ways, etc., were in proper condition. The injured party has better opportunities for knowing and being able to specify the person to whose orders he was conforming when injured than their common employer. The order is presently or immediately previously given, either in person or in such other method as identifies the superior to the inferior employe. This is not true in respect of a defect in the defendants' ways, works, etc. The defect may have arisen years before it worked the injury complained of; and, whether so or not, there is not necessarily any relation or connection between the injured employe and the person charged with the duty of seeing that the ways etc., are in proper condition; and it way well be that the person injured has had no opportunity to ascertain, and does not know, the name or position of the person intrusted with this duty. The duty itself being one which rests on the master, at least to the extent of committing to a competent employe, he is supposed to know, and generally, no...

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  • Shelby Iron Co. v. Morrow
    • United States
    • Supreme Court of Alabama
    • January 4, 1923
    ...... plaintiff." Appellant cites M. & O. R. Co. v. George, 94 Ala. 199, 10 So. 145; McNamara v. Logan, 100 Ala. 187, 14 So. 175; L. & N. R. Co. v. Bouldin, 110 Ala. 185, 20 So. 325; Sou. Ry. Co. v. Cunningham, Adm'r, 112 Ala. 496, 20 So. ......
  • Thomas v. Heard, 1150118
    • United States
    • Supreme Court of Alabama
    • March 24, 2017
    ...case. Section 6–5–390, or a predecessor, has been in effect since 1852. In 1893, this Court stated the following in McNamara v. Logan, 100 Ala. 187, 14 So. 175 (1893), regarding the purpose of what is now codified as § 6–5–390 :"It merely secures to the father, and, in certain contingencies......
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    ......The parent cannot sue at all. on a cause of action arising under the employer's. liability act. Sections 1749-51, Code 1896; McNamara v. Logan, 100 Ala. 187, 14 So. 175. [160 F. 783] . . The. group of statutory enactments in Alabama, to which we have. referred, ......
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