Scarbrough v. Alabama Midland Ry. Co.

• Decision Date: 15 December 1891
• Citation: 10 So. 316,94 Ala. 497
• Parties: SCARBROUGH v. ALABAMA MIDLAND RY. CO.
• Court: Alabama Supreme Court

10 So. 316

94 Ala. 497

SCARBROUGH v. ALABAMA MIDLAND RY. CO.

Supreme Court of Alabama

December 15, 1891

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Action for personal inquiries by Simon Scarbrough against the Alabama Midland Railway Company. Defendant had judgment, and plaintiff appeals. Affirmed.

Sayre & Pearson, for appellant.

A A. Wiley, for appellee.

WALKER J.

The plaintiff had been employed by J. M. Brown & Co. as a laborer in the construction of the Alabama Midland Railway up to the time when he received from them a pass from Ramer, where he had been in camp, to Bainbridge, Ga. He got on the train on which the pass was to be used, and received personal injuries in a collision between that and another train. The portion of the railway on which the collision occurred was, at that time, still in process of construction, and was in the possession, exclusive control, and management of Brown & Co. who, as independent contractors, were engaged in building the railway from Sprague Junction, Ala., to Bainbridge, Ga. The contract of Brown & Co. was with the defendant and the Alabama Terminal & Improvement Company. Prior to the date of the plaintiff's injury, the portion of the railroad from Bainbridge, Ga., to Ozark, Ala., had been completed and turned over by Brown & Co. to the Alabama Terminal &amp Improvement Company, and that company, as a construction company, was then operating this completed portion of the line. The collision occurred between Ozark and Sprague Junction. The contractors had laid the track over this last-named portion of the line, and they were running construction trains over it, but this part of the railway was still uncompleted, and had not been turned over to the construction company or to the defendant railway company. A clause of the contract with Brown & Co. was in these words: "The railway company to furnish engines and cars, with train supplies, with engineer and fireman, and such other force as may be required to handle said train, free of charge, for the transportation of men and material in the construction of the road, such trains to be subject to the order of the contractor during construction." The bill of exceptions states that the two construction trains which collided were furnished to Brown & Co. under and in accordance with, and in the manner prescribed by, the contract. It appears, however, without contradiction, that the engineers of the two construction trains which collided were employed and paid, not by the defendant, but by the Alabama Terminal & Improvement Company, and that that company alone had the power to discharge them. The evidence tended to show that the collision was attributable to the negligence of the engineer in charge of the train upon which the plaintiff was riding. That the defendant was authorized to commit the work of building its road to independent contractors is not questioned; and that J. M. Brown & Co. occupied the position of independent contractors, in reference to the work in which they were engaged, is clear beyond dispute. For their negligence, or for the negligence of their employes, in doing the work contracted for, the defendant is not liable. Railroad Co. v. Chasteen, 88 Ala. 591, 7 South. Rep. 94. The plaintiff accepted the pass from them, and was looking to them for his carriage. There is nothing to indicate that he understood that the defendant had anything to do with his transportation. The claim that the injury complained of is attributable to the negligence of the employes of the defendant is not supported by any tendency of the evidence. The statement in the bill of exceptions to the effect that the train on which the plaintiff was riding was furnished to Brown & Co. in accordance with the terms of the contract with them cannot be construed to involve the assertion that the engineer in charge of that train was employed by the defendant or was subject to its orders; for the proof shows clearly and distinctly that the engineer was not an employe of the defendant at all, and was not subject to its orders. He was the servant or...