Southern Ry. Co. v. Simmons, 6 Div. 340.

• Decision Date: 09 February 1939
• Docket Number: 6 Div. 340.
• Citation: 186 So. 566,237 Ala. 246
• Parties: SOUTHERN RY. CO. ET AL. v SIMMONS.
• Court: Alabama Supreme Court

186 So. 566

237 Ala. 246

SOUTHERN RY. CO. ET AL. v SIMMONS.

6 Div. 340.

Supreme Court of Alabama

February 9, 1939

Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.

Action for damages for personal injuries by George Herman Simmons against the Southern Railway Company and C. D. Schwine. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

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

Coleman Parsons & Abele, of Birmingham, for appellee.

KNIGHT Justice.

Suit by George Herman Simmons, appellee here, to recover damages for personal injuries received by him by being struck by a locomotive of defendant, "while asleep on, or close to the railway track of the defendant."

The cause was tried upon amended count 1 of the complaint, which attempts to charge subsequent negligence on the part of the engineer in the control and operation of one of defendant's locomotives, which, at the time, was pulling a caboose and a number of cars loaded with coal. The locomotive, with the cars attached, was proceeding from Flat Top to Littleton, and, at the time of the accident, was within a short distance of the latter place. Count one appears in the report of the case.

It will be observed that the count avers that the plaintiff "was struck by an engine or locomotive on the railway track of said defendant, and as a proximate consequence suffered the following injuries and damages towit:" (then follows a catalogue of injuries).

It is too plain for argument that the term "as a proximate consequence" was employed simply to show that the injuries sustained resulted from the contact of the engine or locomotive with plaintiff's body, and has no reference whatever to any negligence on the part of the engineer in charge of said locomotive.

The count wholly fails to aver or to show that the injuries complained of were the proximate consequence of any negligent conduct of the engineer.

Of course, the plaintiff might have received his injuries as the proximate consequence of being struck by the moving locomotive, and, at the same time, the said injuries might not have resulted from any negligent act or omission on the part of the engineer.

Pleadings, upon demurrer, must be construed most strongly against the pleader, and with due regard for this rule, we hold that count one was defective in not averring, or showing, that the injuries complained of were received by the plaintiff as the proximate consequence of the negligence charged to the engineer. Louisville & Nashville R. Co. v. Young, 153 Ala. 232, 238, 45 So. 238, 239, 16 L.R.A.,N.S., 301; Merriweather v. Sayre Mining & Mfg. Co., 161 Ala. 441, 49 So. 916; Southern Ry. Co. v. Wright, 207 Ala. 411, 92 So. 654; Western Railway of Alabama v. Mutch, 97 Ala. 194, 196, 11 So. 894, 21 L.R.A. 316, 38 Am. St.Rep. 179; Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443. The negligence charged in count one is directed solely at the engineer. No other agent, servant or employee on said locomotive or train is charged with any negligent act in the operation of the locomotive or train.

In overruling defendant's demurrer to count one of the complaint the court committed reversible error.

The plaintiff, over objection of defendant, was allowed to ask his witness Savage the following questions:

"All right, now, you hold that picture there, please sir. If an engine, No. 814, is going towards Littleton, Alabama, pulling thirteen cars loaded with coal and a caboose, the engine and cars in the same being equipped with airbrakes in good condition, running along the same dry track that you are looking at in the picture, Plaintiff's Exhibit No. 2, at a speed of fifteen miles per hour, and the brakes are immediately applied in emergency, in your opinion what distance would it take to stop the train?

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"Less than one hundred feet. If an engine, No. 814, was going towards Littleton, Alabama, pulling thirteen cars loaded with coal and a caboose,...