Northern Alabama Ry. Co. v. Mansell

• Decision Date: 10 November 1903
• Citation: 36 So. 459,138 Ala. 548
• Parties: NORTHERN ALABAMA RY. CO. v. MANSELL. [a1]
• Court: Alabama Supreme Court

36 So. 459

138 Ala. 548

NORTHERN ALABAMA RY. CO. v. MANSELL. ^[a1]

Supreme Court of Alabama

November 10, 1903

Appeal from Circuit Court, Franklin County; Ed. B. Almon, Judge.

Action by J. W. Mansell, administrator of the estate of William T Barrett, deceased, against the Northern Alabama Railway Company and another. From a judgment for plaintiff, the Northern Alabama Railway Company appeals. Reversed.

The first count averred that on August 29, 1900, "the defendants then owned and operated a line of railroad from the city of Sheffield * * * into and through a portion of the county of Walker in the state of Alabama, and as common carriers ran and operated locomotive engines, cars, and trains on said line of railroad"; that on said date the plaintiff's intestate was employed by and engaged in the service of "the defendants as a brakeman or flagman on a passenger train of defendants then being run and operated by said defendants on their said line of railroad"; that the said defendants owed the plaintiff's intestate the duty of providing safe and sufficient roadway and track for the passage of their trains thereon and for the safe discharge by plaintiff of his duty as brakeman or flagman but that "the defendants failed and neglected to perform their said duty to plaintiff's intestate, while so in their service and employment, to provide and maintain such safe track, roadway, and adjacent structures connected therewith, but by their negligence and want of care allowed their said track and roadway and adjacent structures connected therewith to become and remain unsafe and dangerous, in that the said defendants had constructed a certain stock gap and structure on and adjacent to their track and roadway so close to their track and roadway at a point on said line or roadway * * * that the said track and roadway were unsafe and dangerous to the plaintiff's intestate when engaged in his said services and duty as brakeman or flagman on said train of the defendants, and that by reason thereof, on the day and date aforesaid, the plaintiff's intestate, while in his said service and employment as such brakeman or flagman, was violently hurled and struck against a projecting plank, piece of timber, or other portion or appliance used in said structure and stock gap," and suffered great bodily injury, from the effects of which he died on September 1, 1903; and that said injuries and death of plaintiff's intestate "were caused by the negligence of the defendants in not providing and maintaining a suitable and safe track, roadway, and structures for the performance by plaintiff's intestate of his duties as such brakeman or flagman in and about the running and operation of said passenger train, to the damage of the plaintiff," etc.

The second count, after substantially the same prefatory averments, and alleging the duty which the defendants owed the plaintiff's intestate, and that he was injured by being violently thrown against a part of a certain stock gap on the line of said defendants' road, alleged the negligence complained of in words and figures as follows "That the said injuries to and death of said Barrett plaintiff's intestate, was caused by the negligence of the defendants in not providing a safe roadway, track, and adjacent structure connected therewith, and in maintaining and suffering to remain along, near, and adjacent to their said line of railroad said stock gap and parts and appliances thereof in such state and condition that the same was dangerous to, and did destroy, the life of plaintiff's intestate, said William T. Barrett, while so engaged and employed as a brakeman or flagman on the said train of the defendants, to the damage of the plaintiff in the sum of fifty thousand dollars, as aforesaid, for which he brings this suit."

The third count, after substantially the same prefatory averments, alleged the negligence complained of in words and figures as follows: "That the said injuries and death of plaintiff's intestate were caused by reason of the defendants in the condition of the roadway or track used in the business of said defendants, which said defect in said roadway consisted in this: that the said stock gap, or the wings thereof, were so constructed and maintained that the plaintiff's intestate, in the said discharge of his duties aforesaid, was struck by the plank, timber, or some other portion of said stock gap, or the wings thereof; that he was injured and killed thereby; that the said structure was so close to the track of said line of railroad and passenger trains passing thereon that the same was dangerous and caused the roadway of said defendants to be defective and unsafe; and that such unsafe and defective stock gap and structures adjacent to the same and connected therewith were maintained by the negligence of the defendants, and that by the negligence of the defendants aforesaid the injuries to and death of the plaintiff's intestate was caused, to the plaintiff's damage in the sum of fifty thousand dollars, as aforesaid, for which he brings this suit."

Each of the defendants separately and severally demurred to each of the special counts of the complaint upon the following grounds: (1) For that said count does not show that the wrong complained of was jointly done by these defendants. (2) For that said count does not show that there was any joint purpose on the part of these defendants to commit the wrong complained of, or that there was any joint purpose implicable to them to commit said alleged wrong. (3) For that said count shows that these defendants, if liable at all, are liable separately, and not jointly. (4) For that said count shows that the action therein contained is an action under section 1749 of the Code of 1896, known as the "Employers' Liability Act," yet fails to allege or state such facts or such negligence or omission of duty as would hold the defendant liable under the said section 1749, known as the "Employers' Liability Act." (5) For that said count states no cause of action against this defendant, in this: that it shows on its face that the accident and injury complained of was not caused by any defect in the ways, works, machinery, or plant of the defendant, or used by the defendant in the operation of its road. (6) Said count states no cause of action against this defendant, in this: that said count shows that, if there was any negliegnce which proximately caused the injury complained of in said count, it was the negligence of a fellow servant of plaintiff's intestate, for which the defendant is not liable. These demurrers were overruled.

The defendants separately and severally pleaded five pleas. The first was the plea of the general issue. The second and third were as follows: "(2) Further answering each count of said complaint, said defendant says that the accident and injury to the intestate of the plaintiff would not have happened but for the negligence of the plaintiff's intestate himself, which contributed proximately to his own injury. And said defendant says that said proximate contributory negligence of plaintiff's intestate consisted in this: that in attempting to perform the duties required of him in the position which he occupied on the railroad of the Northern Alabama Railway Company he so negligently performed the same that, as aforesaid, it contributed proximately to his own injury and death. (3) Further answering each count of said complaint, the said defendant says that the accident and injury to the intestate of the plaintiff would not have happened but for the negligence of the plaintiff's intestate himself, which proximately contributed to his own injury. And said defendant says that said proximate contributory negligence of plaintiff's intestate consisted in this: that plaintiff's intestate was a brakeman or flagman on the train which was being operated at the time, and was one of the crew of said train, and that plaintiff's intestate knew, or by the exercise of due diligence on his part could have known, that the stock gap against which it is alleged he was thrown, and by which it is alleged he was knocked from the train, was in the position which it occupied with respect to the railroad track and to passing cars; yet, notwithstanding this, plaintiff's intestate negligently leaned out of the car on which he was riding, and negligently placed himself in such position that in passing said stock gap he was struck by the same, and knocked from the train, thus by his said negligence contributing proximately to his own injury and death." Under the opinion it is unnecessary to set out the fourth plea. The fifth plea was as follows: "(5) Further answering each count of said complaint, the defendant says that, if there was any negligence causing proximately the injury and death of the deceased, as charged in said complaint, it was the negligence of a fellow servant of the deceased, for which this defendant is not responsible." Demurrers were interposed to the fourth and fifth pleas. The fourth plea, as originally filed, is not set out in the record, but appears only as amended after the demurrer thereto had been sustained. The demurrer to the fifth plea was sustained. The trial was had upon issue joined upon the other pleas.

On the trial of the case, as shown by the evidence, William T Barrett, the plaintiff's intestate, was killed by being struck by a stock gap which was constructed near the track of the Northern Alabama Railway Company; that said Barrett was in the employ of the Northern Alabama Railway Company as a flagman on a passenger train; that at the time of the accident he was on a train running at the rate of 25 or 30 miles an hour; that he had discovered that there was a hot box on one of the trucks under the last coach of the train; that he...