Perdue v. Louisville & N.R. Co.
| Decision Date | 21 December 1893 |
| Citation | 100 Ala. 535,14 So. 366 |
| Court | Alabama Supreme Court |
| Parties | PERDUE v. LOUISVILLE & N. R. CO. |
Appeal from circuit court, Butler county; John P. Hubbard, Judge.
Action by J. C. Perdue, administrator of the estate of W. S. Perdue deceased, against the Louisville & Nashville Railroad Company to recover for the death of decedent. From a judgment for defendant, plaintiff appeals. Reversed.
In the first count of the complaint, after alleging the employment of the plaintiff's intestate by the defendant in the operation of a freight train of cars, the plaintiff avers that the accident which resulted in the death of his intestate was caused by reason of the defect in the brakes or one of the brakes, on the cars of the defendant. The second count of the complaint alleges the negligence to have been the want of a sufficient number of brakes to manage and control with safety the freight train. The third count attributed the accident to the want of a sufficient number of brakemen or employes to manage and control the said train. The negligence alleged in the fourth count of the complaint was that of the engineer, who was in the employ of the defendant at the time, and had charge of the engine attached to said train, in running said engine and train down a steep grade "at a great, extraordinary, and dangerous rate of speed, so as to cause said intestate to be thrown off of said cars and killed." In the fifth count the negligence is alleged to have been that of the conductor, who was at the time in the employ of the defendant, and who had charge and control of the said train of cars, "in allowing said train of cars to be run down said grade of the defendant's said railway *** at an extraordinary and dangerous rate of speed, so that plaintiff's intestate was thrown off said train of cars and killed." To the second and third counts of the complaint the defendant demurred on the ground that there were no facts or circumstances shown in said counts connecting the alleged negligence with the injury. To the fourth and fifth counts the defendant demurred on the ground that the complaint seeks to recover for the negligence of the engineer and the conductor, when the plaintiff's intestate was an employe of the defendant. The demurrers to the fourth and fifth counts were sustained, and the plaintiff duly excepted. Plaintiff's intestate was a brakeman in the employ of the defendant railway, running on a train between Flomaton and Montgomery, and on the morning of the 16th December, 1889 while the said train was coming in the direction of Montgomery, and when at or near a place known as "Mudge's Tank," plaintiff's intestate fell from the top of the train, which was in motion, and was killed. There were two other brakemen on the train at the time of the accident.
The testimony of one Oliver, who was the conductor of the train shows substantially the following facts: That shortly after leaving Flomaton, a station south of the point where Perdue was killed, he directed Perdue to examine the brakes, who replied that several were out of order, and that but three or four of them would work. Witness then told Perdue to do the best he could, and govern himself accordingly, and apply the brakes "more early;" that witness did not know how many brakes were out of order. That when the train was coming north, and was about one-half mile from Mudge's Tank, he heard the engineer blow the signal for brakes. That he looked out, and thought that at the time the train was going too fast to make a good stop at the tank, and looked to see who was not performing his duty. That the witness could see the light of the middle brakeman, (appellant's intestate,) but could not recognize who it was. When first seen it was on the left side of the car, going north, and did not move when the engineer blew his first signal for the brakes to be applied. That the engineer blew a second signal for brakes and then witness saw the light of the middle brakeman go from the left side of the car to the center, pause a few moments and then move forward, or in the direction from witness; and then witness saw the lantern go over to the left of the train and disappear at a place about five car lengths from the caboose. This testimony further tended to show that the accident occurred about 4:25 or 4:30 in the morning. That it was slightly cloudy, and a light frost. That the train passed the tank, and stopped a short distance beyond. That they went on to Garland, and waited for the passenger train going south, and then went back to see about...
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