Northern Alabama Ry. Co. v. Harper
| Decision Date | 30 May 1918 |
| Docket Number | 6 Div. 724 |
| Citation | 201 Ala. 679,79 So. 251 |
| Parties | NORTHERN ALABAMA RY. CO. v. HARPER. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Winston County; T.L. Sowell, Judge.
Action by Henry Harper against the Northern Alabama Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
J.H Bankhead, Jr., of Jasper, for appellant.
R.L Blanton, of Haleyville, for appellee.
The appeal is on the record proper; there being no bill of exceptions.
Errors are assigned and argued as to the overruling of demurrers to counts 2, 5, and 6 of the complaint, and as to the sustaining of a demurrer to plea 4.
Count 2 is intended to state a cause of action under subdivision three of the Employers' Liability Act (Code 1907, § 3910), based on the negligence of an order given to plaintiff by his foreman commanding him to propel a hand car or lever car along the railroad track, which was very crooked and over high trestles, when the foreman knew or ought to have known of the approach of a train of cars on the same track.
Count 5 is intended to state a cause of action under the second subdivision of the same statute, complaining of the negligence of the same person, as that of one intrusted by the master with superintendence, who, while in the exercise of such superintendence, negligently ordered plaintiff to propel the car under substantially the same conditions as those stated in count 2.
Count 6 is intended to state a cause of action under subdivision 5 of the same act, alleging that the foreman was in charge or control of the hand car or lever car, and charging negligence in his having the car propelled along the railroad track under conditions substantially the same as those alleged in count 2.
Some of the allegations in count 2, after stating that the railroad track at or about the point of the accident was very crooked and on high trestles, and the fact that a train of cars was about to meet the hand car on the same track, alleged, among many other things:
"That said Wilson at the time well knew that his orders or directions were causing said lever or hand car to be operated over said road on the time of an approaching train going in the opposite direction, and he knew of the condition of defendant's railroad between said points above described that made it dangerous to those on said car to so operate it, and he also knew of plaintiff's disadvantageous and perilous position on said car at the time, but, notwithstanding this knowledge of facts and conditions, and without taking proper precautions to avoid the reasonable and probable consequences of injury to this plaintiff occasioned by his action, which was his duty, he negligently ordered or directed this plaintiff to assist in propelling said car over said piece or part of said railroad," etc.
Count 2 concluded as follows:
"And plaintiff avers that he suffered said injuries and consequence damages by reason and as a proximate consequence of the negligence of a person in the service or employment of the defendant, viz. the said Wilson, to whose orders or directions plaintiff, at the time of his injury, was bound to conform, and did conform, and that his said injuries resulted from his having so conformed."
This count we hold to be sufficient, under uniform rulings of this court. The decisions are too numerous to require citation or reference thereto. The annotations to ...
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