Mobile, J. & K.C.R. Co. v. Bromberg

Decision Date17 May 1904
Citation37 So. 395,141 Ala. 258
PartiesMOBILE, J. & K. C. R. CO. v. BROMBERG.
CourtAlabama Supreme Court

Appeal from Circuit Court, Mobile County; Wm. S. Anderson, Judge.

Action by Charles L. Bromberg, Jr., as administrator, against the Mobile, Jackson & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This suit was instituted by the appellee in the circuit court of Mobile county to recover damages for the alleged negligence of the defendant, causing the death of his intestate, Arthur Robbins, on the 19th day of December, 1900. Plaintiff's intestate was employed as a brakeman by the defendant, and on the morning of the accident undertook to couple two cars of the defendant--one a caboose, equipped with a link and pin coupler, and the other a passenger coach, equipped with what is known as a "Miller hook" coupler. The cars did not couple automatically. The coupling was attempted to be made on a very sharp curve in one of the tracks of the defendant company in its yard at its terminus in the city of Mobile. Plaintiff's intestate went in between the ends of the two cars, and took a position on the inside of the curve and called to another brakeman of defendant, who was standing some distance from the train on the inside of the curve, to give the signal to the engineer to back the train up in order that he might make the coupling. When the train moved down to the car to which the coupling was to be made, deceased was caught between the corners of the two cars, on the inside of the curve, and after the cars were separated by the concussion walked from between them, and laid down on an embankment near the track, where he died immediately.

The substance of the averments of the first seven counts of the complaint as amended is sufficiently shown in the opinion. The eighth count of the complaint was in words and figures as follows: "(8) The plaintiff, Clara Miller, as the administratrix of the estate of Arthur Robbins, deceased under appointment of the probate court of Mobile county Alabama, sues the defendant, the above-named Mobile, Jackson & Kansas City Railroad Company, a corporation, and claims of it the sum of fifty thousand dollars as damages, for that heretofore, to wit, prior to and at the time of the matters and things herein complained of, the said defendant was in the possession and control of and was operating a railroad engaged in interstate commerce, and running its trains on its line of railroad from a point in Mobile county, Alabama, in or near the city of Mobile, Alabama, to Merrill, a place in the state of Mississippi, and engaged in carrying passengers and freight between various points in the state of Alabama and various points in the state of Mississippi; and the plaintiff avers that on the 19th day of December, 1900, the defendant was required by law, and it was the duty of said defendant, to have equipped its cars used in moving interstate traffic on its line with couplers which would couple automatically by impact; and the plaintiff avers that the defendant neglected to perform its said duty, and by reason of such negligence mashed to death the plaintiff's intestate, Arthur Robbins, who was then and there in the employ of the defendant while engaged in the performance of his duty in making a coupling in Mobile county, Alabama, on the said 19th day of December, 1900; to the great damage of the plaintiff, wherefore she sues." The eighth count of the complaint was demurred to upon the following grounds: (1) Said count fails to allege that plaintiff's intestate was mashed or jammed by the cars of defendant which were not equipped with automatic couplers as required by law. (2) Said count fails to allege any fact showing the relation between the failure of the defendant to equip its cars with automatic couplers as required by law and the death of plaintiff's intestate. (3) Said count fails to allege any fact showing that the character of employment in which plaintiff's intestate was engaged with defendant was such as to impose upon defendant the duty to plaintiff's intestate to equip its cars with automatic couplers. (4) Said count fails to allege any fact showing that the coupling alleged to have been attempted by plaintiff's intestate was the coupling of cars required by law to be equipped with automatic couplers. This demurrer was overruled.

The defendant pleaded the general issue and several special pleas, setting out its defense that the deceased assumed the risk or danger incident to his making the coupling, and therefore that he was killed by negligence which proximately contributed to his injury. Among the special pleas of the defendant interposed by the first six counts of the complaint was the following: "(3) Defendant further says that in the track of its said railroad at the point where plaintiff's intestate undertook to couple said coach and said caboose together there was a sharp curve, and that plaintiff's intestate negligently took a position between said coach and said caboose on the inside of said curve where the cars would come together in the event the drawbars of said cars slipped by each other; and defendant alleges that plaintiff's intestate could with safety have taken a position between said cars on the outside of said curve, where, in the event said drawbars slipped by each other, there would have been ample room between the ends of said cars on the outside of said curve for plaintiff's intestate to have stood without danger. Defendant alleges that the danger due to standing between said cars on the inside of said curve was obvious; and defendant alleges that the said negligence of plaintiff's intestate proximately contributed to his alleged injuries." To this third plea the plaintiff demurred upon the following grounds: (1) Said plea raises no issue or issues which are not raised by the defendant's first and second plea, in this: said plea attempts to set up contributory negligence of plaintiff's intestate, and which defense of contributory negligence is fully raised by the second plea or pleas, and the defendant can under said plea avail itself of every legal defense of contributory negligence available to the defendant in this cause. (2) Because said plea does not allege that to go in between the cars on the outside of said curve was a proper way to go about making said coupling. (3) Because said plea fails to show that going between the ends of the cars on the inside of the curve was not a proper way of making said coupling. This demurrer was sustained. The other pleadings and rulings thereon are sufficiently stated in the opinion.

The bill of exceptions contains the following recitals in reference to a part of the argument made by plaintiff's attorney before the jury: "Plaintiff's counsel, in making the opening argument to the jury, among other things said: 'Gentlemen of the jury, you should give a large verdict in this case as punishment, because, if you give a small verdict, defendant could appeal, and delay the case, but, if a large verdict was given, it would be afraid of an affirmance, and would come forward with a proposition of settlement.' Defendant moved the court to stop counsel and exclude such argument. The court refused the motion, and defendant then and there excepted." Under the opinion on the present appeal it is not necessary to set out at length the many charges to the jury requested by the plaintiff and the defendant. There were verdict and judgment in favor of the plaintiff, assessing his damages at $4,500. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

McIntosh & Rich, for appellant.

Gregory L. & H. T. Smith and Charles L. Bromberg, Jr., for appellee.

DOWDELL J.

This is a suit by Charles L. Bromberg, Jr., administrator, etc against the appellant railroad company to recover damages for the negligent killing of Arthur Robbins on the 19th day of December, 1900. The deceased was a brakeman, and as such was at the time of his injury in the employment of the defendant company, and was killed while in the act of coupling two cars together in the discharge of his duties as brakeman. It is alleged in the complaint that the said Arthur Robbins was killed by being crushed between a caboose and a passenger coach, "which were being made up in a train of the defendant for interstate commerce," and while attempting to couple the two cars together. The alleged negligence of the defendant consisted in a failure on the part of the defendant company to comply with the provisions and requirements of the act of Congress known as the "Safety Appliance Act," approved March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]. The complaint was several times amended, and as finally amended contained eight counts. The first assignment of error relates to the ruling of the court on demurrers to the complaint. This assignment is as follows: "The court below erred in overruling the demurrers of the defendant to the amended complaint filed by the plaintiff on June 1, 1901, and also in overruling the additional demurrers to amended complaint filed June 4th, 1901." The demurrers that are referred to in this assignment are directed to the first, second, third, fifth, and sixth counts of the amended complaint. The orders overruled all of the demurrers. The assignment of error is a joint assignment of all these rulings, and unless there was error in overruling the demurrer to each and every count, the assignment is bad, and unavailing. The first three grounds of the demurrer raise the question of the necessity of alleging in the complaint in a suit under the federal statute that at the moment of the injury the cars are actually moving freight or passengers in the...

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