Richmond & D.R. Co. v. Hammond

• Citation: 9 So. 577,93 Ala. 181
• Parties: RICHMOND & D. R. CO. v. HAMMOND.
• Decision Date: 26 June 1891
• Court: Alabama Supreme Court

9 So. 577

93 Ala. 181

RICHMOND & D. R. CO. v. HAMMOND.

Supreme Court of Alabama

June 26, 1891

Appeal from circuit court, Fayette county; S. H. SPRATT, Judge.

This was an action brought by the appellee, John W. Hammond, as administrator of the estate of Zuela Shelton, deceased, and sought to recover damages for the alleged negligent killing of the plaintiff's intestate while in the employ of the Richmond & Danville Railroad Company, the defendant in the court below. The defendant requested the court to give, among others, the following written charges: "(13) In this case, even if you believe from the evidence that the death of Shelton, the plaintiff's intestate, resulted proximately from his (Shelton's) having conformed to the negligent order of some person in the service of the defendant, to whose orders said Shelton was bound to conform, and did conform, you cannot find a verdict for the plaintiff on that ground. (14) There is no evidence in this case that the death of the plaintiff's intestate was proximately caused by the negligence of a person in the service of the defendants to whose orders the plaintiff's intestate was bound to conform, and that his death resulted from his having so conformed." "(16) In this case you cannot find a verdict for plaintiff under subdivision three of section 2590 of the Code of 1886, which the court has already read in its oral charge to you." The court refused to give these charges, as well as all others asked by the defendant, and the defendant separately excepted to the refusal to give each of the charges as asked. There was judgment for the plaintiff. The defendant brings this appeal, and assigns as error the rulings of the court upon the evidence, and the refusal to give the charges asked by the defendant.

James Weatherly, for appellant.

John B. Sanford, for appellee.

CLOPTON J.

Zuela Shelton, plaintiff's intestate, while in the service of the Richmond & Danville Railroad Company, being one of a gang of laborers employed in repairing bridges and trestles, was injured under the following circumstances, as to which there is no dispute. On May 25, 1889, he and other laborers were engaged in repairing a trestle on defendant's road. By direction of Hackett, who was the foreman, having charge of the workmen and superintendence of the work, the laborers quit work about 6 o'clock in the afternoon, put their tools on a hand-car, then being used, and started to go to their camp to put off the tools, and then to Corona for rations. Hackett accompanied them on the car. When they had gone about a mile, a work train was discovered coming around a curve from the direction in which they were going. A collision being inevitable, Shelton, who was sitting on the front end of the hand-car, between Hackett and one of the workman, jumped off in front, and, not clearing the track was run over by the hand-car, and so seriously injured that he died in about three hours. No signal to notify passing trains of the presence of the hand-car on the track was displayed. The case shown by the evidence does not come within the provisions of subdivision 3 of section 2590 of the Code. While it is true that the deceased was bound to conform, and did conform, to the orders or directions of Hackett, it does not appear that his having so conformed was the proximate cause, but the condition, of his injuries. There was nothing improper in the order to take and leave the tools at the camp, and proceed to Corona for rations. The case rather comes within either subdivision 2: "When the injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has any superintendence intrusted to him, whilst in the exercise of such superintendence;" or, within subdivivion 5 "When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer who has charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway, or any part of the track of a railway." That the superintendence of this force of a laborers and the work in which they were employed was intrusted to Hackett, constituting him the representative of the company, is too clear to admit of doubt; also that he had control of the movements of the hand-car. The question then is, was the injury of the deceased caused by reason of Hackett's negligence while in the exercise of such superintendence, or while he had control of the car? In the discharge of its duty to use due care and diligence, to guard its employes against danger, by providing reasonable precautions, the company adopted rules and regulations requiring, when the track is obstructed from any cause, so as to prevent the passage of trains, in order to insure safety, that danger or caution signals be displayed at least 900 yards from the obstruction, and making it the duty of every foreman or other person, in charge of a force engaged in repairing the track, to keep himself supplied at all times, and...