Seaboard Mfg. Co. v. Woodson
| Decision Date | 03 November 1891 |
| Citation | 94 Ala. 143,10 So. 87 |
| Court | Alabama Supreme Court |
| Parties | SEABOARD MANUF'G CO. v. WOODSON. |
Appeal from circuit court, Mobile county, W. E. CLARKE, Judge.
Action by Abe Woodson against the Seaboard Manufacturing Company to recover for personal injuries. There was judgment for plaintiff, and defendant appeals. Reversed.
This action was brought by the appellee, Abe Woodson, against the appellant corporation, and sought to recover damages for personal injuries. The plaintiff was fireman on the engine operated by the defendant at the time of the accident. The engine was stopped, the brakes put on, and a chock put under the wheels of a car attached to it, and the engineer went off to assist some construction hands working on the road. The plaintiff, while left alone with the engine, went under it to clean it, and while under the engine it, in some way, moved backward, and mashed and mangled plaintiff's arm so badly that it was necessary to amputate it. The complaint contained six counts, but the assignments of error in this case make it necessary to notice only the rulings of the court upon the first and second counts. The first count alleges that the appellant was operating a railroad, and appellee was a fireman in its employment, and was run over while obeying and observing the rules and regulations of appellant; that his injuries were caused by defects in the engine, "known to the superior officers of plaintiff, and known to defendant or it might have known of said defects by the exercise of ordinary and reasonable diligence. " The language in italics was inserted by amendment. There was no allegation (either of fact or conclusion) that defendant, or any of its officers or employes, were guilty of any negligence. This count was demurred to on two grounds: (1) Because there was no sufficient allegations of negligence on the part of defendant; (2) because it is not alleged that the defect in said count mentioned arose from or had not been remedied owing to the negligence of the defendant, or of some person in the service of the defendant, intrusted with the duty of seeing that the machinery was in a proper condition. The second count recites the employment of appellee substantially as in the first count, and then alleges that the injury was caused "by reason of the negligence of the foreman of the defendant, which said foreman was intrusted by the defendant with the exercise of superintendence over the plaintiff and said railroad, and its engines and cars; and plaintiff avers that the negligence of said foreman consisted in this: that he knowingly allowed a certain engine to be and remain in a defective condition." This count was demurred to on the grounds (1) Because it is not alleged that the defect complained of in said engine mentioned in said count arose from or had not been remedied owing to the negligence of the foreman; (2) because it is not alleged that the defect complained of had existed prior to the accident; (3) because there is no allegation showing that the defect complained of had existed long enough to have allowed the foreman a reasonable opportunity to have remedied the same. The court overruled these demurrers to the first and second counts. The plaintiff's evidence tended to show that the lever of the engine was left in a backward position, and that the effect of a leak in the throttle valve, combined with the lever being in a back motion, might have been to move the engine backward. His evidence further tended to show that this leak had existed for some time, and this fact was known to the engineer in charge, and to a Mr. Du Mont, and that Mr. Du Mont was called a foreman, and had charge and control of the engine and cars of the defendant. The defendant's evidence tended to show that the throttle-valve of the engine did not leak, that the engineer left the lever in a forward position; and that, even if the throttle-valve had leaked, it would not, while the lever was in a forward position, have made the engine move backward. It further tended to show that, while the engineer was gone and plaintiff was in sole charge of the engine, the lever was moved from a forward to a backward position. Defendant's evidence further tended to show that Du Mont was not called a foreman at all, but was a train dispatcher, and that a Mr. Spootswood was the general foreman. The complaint alleges, as a defect in the engine "that the throttle-valve leaked, and allowed the steam to pass through into the cylinder of the engine, and caused the engine to move off." At the plaintiff's request, the court charged the jury, in writing, that "if the foreman, Du Mont, knew the engine was out of order, as shown in the complaint, then the plaintiff would not be required to inform the defendant, if the jury believe that Du Mont was a foreman in charge and control of the locomotive, engine, and cars of the defendant." There was judgment for the plaintiff for $775 damages, as assessed by the verdict of the jury. The defendant prosecutes this appeal, and assigns as error the rulings of the court in overruling its demurrers to the first and second counts of the complaint, and in giving the charge requested by the appellee.
Gregory L. & H. T. Smith, for appellant.
B. B. Boone, for appellee.
1. The first count of the complaint alleges that the injury to the plaintiff was caused by reason of defects in the condition of the locomotive engine upon which he was serving as fireman and the defect mentioned was that the throttle-valve leaked and allowed the steam to pass through into the cylinders of the engine, and caused the engine to move off without warning to the plaintiff, while he was under the same, oiling and wiping it off. The original first count alleged "that said defects were known to the superior officers of plaintiff, and known to the defendant." The manifest purpose...
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... ... appellee here, was entitled to a peremptory instruction ... Seaboard ... Mfg. Co. v. Woodson, 94 Ala. 143, 10 So. 87; U ... S. Rolling Stock Co. v. Weir, 96 Ala 396, ... ...
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