Sloss-Sheffield Steel & Iron Co. v. Mobley

• Citation: 139 Ala. 425,36 So. 181
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. MOBLEY.
• Decision Date: 02 February 1904
• Court: Supreme Court of Alabama

36 So. 181

139 Ala. 425

SLOSS-SHEFFIELD STEEL & IRON CO. v. MOBLEY.

Supreme Court of Alabama

February 2, 1904

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

Action by Beulah Mobley, as administratrix of the estate of Joseph P. Mobley, deceased, against the Sloss-Sheffield Steel & Iron Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The complaint, as originally filed, contained only three counts. Subsequently the fifth, sixth, and seventh counts were added by amendment. The first count was framed under the common law for death by wrongful act, and the second count was framed under subdivision 1 of the employer's liability act (Code 1896, § 1749). The second count was withdrawn by the plaintiff, and the court, at the written request of the defendant, instructed the jury that the plaintiff could not recover under the first count of the complaint. There were therefore left in the complaint the third, fifth, sixth, and seventh counts. There was no count numbered 4. The third count was in words and figures as follows: "(3) The plaintiff claims of the defendant the sum of nineteen hundred and ninety-nine dollars, as damages for the negligent killing of her intestate, Joseph P. Mobley. And plaintiff alleges that on or about the 8th day of April, 1900, the defendant by its agents and servants was engaged in operating a blast furnace near the city of Florence, Alabama, and that in connection therewith and accessory thereto the defendant was at said time operating locomotive and switch engines in the handling of the material for and the products of said furnace. Plaintiff alleges that on said day the said Joseph P. Mobley was in the employment of the defendant working in the capacity of a switchman or brakeman. And plaintiff alleges that while he was so employed and while he was in the active discharge of his duties as such switchman he was caught between one of the defendant's switch engines and a hot pot and was crushed and mangled so that he died. And plaintiff alleges that the injuries from which the said Joseph P. Mobley died resulted from and were caused by the negligence of one John Williams who was also working for the defendant in the capacity of a locomotive engineer, and who had charge or control of the said switch engine which caught and crushed the plaintiff's intestate as aforesaid, from which injuries he died, to plaintiff's damage as aforesaid, wherefore she brings this suit." The fifth count, after containing the same averments as the third as to the operation by the defendant of locomotives and switch engines, and as to the capacity in which the plaintiff worked, and as to his having been caught between one of the switch engines and the hot pot and burned to death, then avers the negligence complained of as follows: "Which injuries were caused by reason of defects in the condition of the works, machinery, or plant used in the business of the defendant as aforesaid, which defect consisted in this: The engine which was being operated by the defendant upon its said track at the time of the injury complained of was defective in not having a headlight, which defect arose from and had not been discovered or remedied owing to the negligence of the defendant, or of some person in the service of the defendant intrusted by the defendant with the duty of seeing that the ways, works, and machinery or plant were in proper condition." The sixth count, after the same prefatory averments, charges the negligence complained of as follows: "Which injuries were caused by reason of defects in the condition of the works, machinery, or plant used in the business of the defendant as aforesaid, which defect consisted in this: The chock which was used by the defendant at the time of said injury to scotch a hot pot which was used by the defendant, and onto which said defendant was endeavoring to couple its said switch engine was defective, which defect arose from and had not been discovered or remedied owing to the negligence of the defendant, or of some person in the service of the defendant and intrusted by the defendant with the duty of seeing that the ways, works, and machinery or plant were in proper condition." The seventh count, after the same prefatory averments, charges the negligence complained of as follows "Which injuries were caused by reason of defects in the condition of the works, machinery, or plant used in the business of the defendant as aforesaid, which defect consisted in this: The track which was then and there used by the defendant, and upon which said switch engine and hot pot were being operated, was defective in not having the cross-ties tamped and filled in, which defect arose from and had not been discovered or remedied owing to the negligence of the defendant, or of some person in the service of the defendant, and intrusted by the defendant with the duty of seeing that the ways, works, and machinery or plant were in proper condition."

To the fifth count of the complaint the defendant demurred upon the following grounds: "(1) It does not appear therefrom that the alleged defect in said engine was the proximate cause of the intestate's death. (2) It does not appear therefrom that defendant was guilty of any negligence of which said plaintiff can complain." The defendant demurred to the sixth count of the complaint upon the following grounds: "(1) It does not appear therefrom that the alleged defect in said chock was the proximate cause of the intestate's death. (2) It does not appear therefrom that the defendant was guilty of any negligence of which said plaintiff can complain. (3) The defect complained of does not constitute a part of the works, machinery, or plant used in the business of the defendant, within the purview of subdivision 1 of section 1749 of the Code of 1896." To the seventh count of the complaint the defendant demurred upon the following grounds: "(1) It does not appear therefrom that the alleged defect in said track was the proximate cause of plaintiff's intestate's death. (2) It does not appear therefrom that the defendant was guilty of any negligence of which plaintiff can complain." These demurrers were overruled.

The defendant pleaded not guilty, and several special pleas, but it is unnecessary, under the opinion on the present appeal to set out at length these special pleas.

On the trial of the case it was shown that plaintiff's intestate was a man of 28 years of age, was an experienced switchman and was in the employment of the defendant at its blast furnace at Florence, Ala., in the capacity of a switchman, and was killed in an attempt to couple an engine to a hot pot on the inclined track upon the defendant's slag pile. It was further shown that the hot pot was an iron pot weighing between five and ten tons, placed on tracks, and is used for the purpose of transporting molten slag from the furnace to the slag pile; that these hot pots are constructed without brakes; that in moving them they are coupled to a locomotive engine, and by that means are propelled along the tracks between the furnace and the slag pile; that, being without brakes, they are made stationary, when on the inclined track, by placing a piece of wood or plank, commonly called a "chock," under the wheels; that it is the duty of the switchman to chock the hot pot with these pieces of wood or plank, and, when not properly chocked, the hot pot will run of its own momentum down the inclined track. It was further shown that at the time of the accident which resulted in the death of plaintiff's intestate he was trying to couple one of these hot pots to an engine; that in doing this he gave signals to the engineer about the movement of the engine, which were obeyed by the engineer, and that, getting between the hot pot and the engine, he was crushed to death. There was evidence tending to show that in trying to make the coupling the chock which was used was knocked from under the wheel, and the hot pot commenced to roll down the inclined track of its own momentum; that the plaintiff's intestate was walking in front of the hot pot, holding up a coupling drawbar for the purpose of making the coupling.

During the examination of M. J. Mobley, the father of the plaintiff's intestate, he testified that he had had many years' experience upon railroads, and had observed the condition of the tracks of well-regulated railroads, and knew how they were kept. Thereupon the witness was asked to state whether or not the track where the plaintiff's intestate was killed was built like the tracks of other well-regulated railroads. The defendant objected to this question upon the ground that it called for immaterial, incompetent, and illegal evidence. The court overruled the objection, and the defendant duly excepted. Upon the witness answering that the track was not like the track of other well-regulated railroads, the defendant moved to exclude said answer upon the same ground. The court overruled the motion, and the defendant duly excepted.

On the examination of Joe West as a witness for the plaintiff, he testified that the hot pot, when first struck by the engine moved as much as a half foot or a foot; that if the chock was under the front wheel on the side where the deceased was standing when he signaled to the engineer to come back, there was nothing to prevent the deceased from seeing whether or not the chock was out of place when he signaled the engineer to come back; that the track upon which the deceased was killed was a new track, and had been filled in "pretty level" at the place where the accident occurred; that the deceased was familiar with the hot pot and the coupling of it to the engine. After the witness having further testified that he had many years' experience in working...