Southern Ry. Co. v. Lockridge, 6 Div. 475.

• Decision Date: 30 October 1930
• Docket Number: 6 Div. 475.
• Citation: 222 Ala. 15,130 So. 557
• Parties: SOUTHERN RY. CO. v. LOCKRIDGE.
• Court: Alabama Supreme Court

130 So. 557

222 Ala. 15

SOUTHERN RY. CO. v. LOCKRIDGE.

6 Div. 475.

Supreme Court of Alabama

October 30, 1930

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action for damages for personal injuries by John D. Lockridge against the Southern Railway Company and Julian B. McKibbon. From a judgment for plaintiff, defendant Southern Railway Company appeals.

Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellee.

SAYRE J.

The case was tried upon count B of the complaint in which plaintiff claimed of "the defendants"-meaning, as the record shows, the Southern Railway Company, a corporation, and Julian B. McKibbon-damages for that "on, to-wit: the 16th day of April, 1928, the defendants were engaged in operating a railroad train from the city of Atlanta, in the state of Georgia, to, in and through the city of Birmingham, Jefferson County, Alabama, same being then operated on a railroad track. That on, to-wit, said date plaintiff was standing on said track and on a public highway in said city of Birmingham, known as Wood Street (at a place on said public highway which was a public crossing over said track) waiting for a train, on a track next to the track on which plaintiff was standing, to clear the Wood Street crossing; that while at said place the railroad train so operated by defendants was approaching plaintiff under the management and control of defendants; that plaintiff was put in peril of his life, or of great bodily harm by said approaching train; that the agent, agents or servants of the defendants in charge of said train acting within the line and scope of his or their authority as such saw said peril of plaintiff, and saw that plaintiff would not likely make any effort to avoid being injured; that after the discovery of plaintiff's said peril the agent, agents, servant or servants of the defendants in charge of said train, acting within the line and scope of his or their authority as such so negligently and carelessly conducted themselves in and about the operation of said train that said train was caused as a proximate result of said negligence, to run upon or against plaintiff, and as a proximate result of said negligence plaintiff was injured and damaged as follows"-stating plaintiff's injuries.

The evidence for the defense tended to exonerate McKibbon of negligence, but in one of its aspects tended to fasten a charge of negligence upon one Harris, who at the time of plaintiff's injury was fireman on the locomotive and keeping a lookout from his side thereof. The jury returned a verdict for plaintiff "against defendant Southern Railway Company," assessing damages-this in pursuance of the court's instruction that their verdict might be cast in that form. Thereupon the court rendered judgment against the railway company and that the defendant McKibbon go hence etc.

At the threshold of the case the court here is met by the proposition set forth in Walker v. St. Louis-San Francisco Railway Company, 214 Ala. 493, 108 So. 388, where it was said to be the settled law of this and other courts that, "when the master is sued jointly with his servant for the misfeasance or malfeasance of said servant, and is liable for the conduct of said servant under the doctrine of respondent superior a verdict in favor of such servant entitles the master to have the verdict against him set aside," following therein the decision in Supreme Lodge v. Gustin, 202 Ala. 246, 80 So. 84, where numerous cases to that effect had been cited.

The court had refused to defendant charge A-2 requested in the following language: "The court charges the jury that you cannot find a verdict against defendant Southern Railway Company for or on account of any negligence on the part of engineer Julian B. McKibbon without also finding a verdict against said engineer Julian B. McKibbon."

We find no very impressive reason for refusing to follow the cases to which we have referred. Plaintiff's testimony was that he...