Southern Ry. Co. v. Arnold

• Decision Date: 04 February 1897
• Citation: 114 Ala. 183,21 So. 954
• Parties: SOUTHERN RY. CO. v. ARNOLD. [1]
• Court: Alabama Supreme Court

21 So. 954

114 Ala. 183

SOUTHERN RY. CO. v. ARNOLD. ^[1]

Supreme Court of Alabama

February 4, 1897

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Thomas C. Arnold against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

This action was brought by the appellee, Thomas C. Arnold, against the Southern Railway Company; to recover damages for personal injuries, alleged to have been caused by reason of the negligence of the defendant or its employés.

The sixth and seventh counts of the complaint were as follows "The plaintiff claims of the defendant $7,500 as damages for that heretofore, on, to wit, 12th April, 1895, defendant was running and operating a certain steam locomotive engine and cars upon a railway in its yard known as Avondale yard in Jefferson county, Ala., and at said time plaintiff was in the service or employment of defendant as a switchman and was engaged in said service in said yard upon or about said cars and while plaintiff was so engaged in said service in or about coupling or attempting to couple two of said cars together, plaintiff's hand was caught between the dead-blocks of said cars and so mashed and bruised that plaintiff lost a part of said hand and suffered great mental and physical pain, was made sore and sick, was disfigured and maimed and rendered less able to work and earn money, and plaintiff was put to great expense and trouble for medicine medical attention, care and nursing in his efforts to heal and cure his said wounds and injuries. And plaintiff further avers that his said hand was caught and he suffered said wounds and injuries by reason of the negligence of a person in the service or employment of defendant who had charge or control of said locomotive engine, viz.: defendant's engineer, to wit, one Sullivan negligently caused one of said cars to go towards and to the other of said cars which plaintiff attempted to couple together as aforesaid, with too much speed or force. All to plaintiff's damage $7,500 wherefore he sues.

Seventh count. Plaintiff refers to and adopts all the words and figures of the sixth count from the beginning thereof to and including the words "his wounds and injuries" where they occur together in said count; "and plaintiff further avers that his hand was caught as aforesaid and he suffered said wounds and injuries by reason of the negligence of a person in the service or employment of defendant who had superintendence intrusted to him, viz. defendant's foreman, one Brown, negligently caused or allowed one of said cars to go towards and to the other of said cars which plaintiff attempted to couple together as aforesaid with too great force or speed, without any one upon said car to control its motions and when the engine was not attached thereto."

To each of these counts the defendant demurred upon the following grounds: (1) Because it shows on its face that the plaintiff was himself guilty of contributory negligence which proximately contributed to produce his injury. (2) Because said count shows on its face that the plaintiff voluntarily assumed the risk of injury to himself in and about the coupling of said cars. (3) Because said count fails to show or aver that the plaintiff was ordered or required to then and there couple said cars together under the existing circumstances. (4) Because each of said counts fails to aver or show with sufficient certainty in what the negligence of the defendant, or its said servant or employé consisted. (5) Because neither of said counts sufficiently avers of shows any duty owing by the defendant or its servants to the plaintiff in respect to the matters connected with the plaintiff's injury, and a breach of such duty. These demurrers were overruled, and the defendant duly excepted. The facts of the case are sufficiently stated in the opinion.

Among the charges asked by the defendant, and to the refusal to give each of which the defendant separately excepted, was the following: "If the jury believe all the evidence in this case, they must find a verdict for the defendant." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Smith & Weatherly, for appellant.

Bowman & Harsh, for appellee.

HARALSON J.

After the evidence was all in, the court, at the written request of the defendant, instructed the jury that they could not find a verdict for the plaintiff under any of the counts of the complaint except the 6th and 7th, and the case was submitted to them on the evidence under these two counts, and the pleas thereto. We may, therefore, properly pretermit all inquiry into the rulings of the court, on any of the counts except the two last named; for, if there was any error in those other rulings, it was cured by the last ruling in favor of defendant, eliminating all consideration of the other counts from the jury. The case was tried on pleas of the general issue to these two counts, and on a plea of contributory negligence by the plaintiff.

1. Counts 6 and 7, under the uniform rulings of this court, must be held to be sufficient in their averments of negligence, and as claims of damages in a case of this character. Railroad Co. v. Thomas, 42 Ala. 673; Stanton v. Railroad Co., 91 Ala. 384, 8 So. 798; Railway Co. v. Chewning, 93 Ala. 26, 9 So. 458; Railroad Co. v. George, 94 Ala. 214, 10 So. 145; Railway Co. v. Chambliss, 97 Ala. 171, 11 So. 897; Laughran v. Brewer, 21 So. 415.

2. The injury of the plaintiff consisted in having three fingers of his left hand mashed off from having them caught between the dead-blocks, dead-woods or bumpers, as they are indifferently called, on the cars which he was attempting to couple. These dead-blocks were of the double pattern on both cars, and came out even with the draw-heads, so that when the cars came together, the entire surface of the dead-blocks and draw-heads met evenly. The dead-blocks were about a foot or a foot and a half wide, as plaintiff represented them and were on each side of the draw-head, with a space of about five or six inches between them and the draw-head.

There were two cars that had been cut off and placed on a switch track called No. 3. The plaintiff was attempting when injured, to couple two other cars which had been detached from the engine, and run or "kicked" down onto this switch track, No. 3, to be coupled to the two already standing still thereon. The switching was done in the yard of defendant at Avondale, about 3 o'clock in the morning under one Brown, the foreman of the crew. Plaintiff worked in the "field," as it was called, and the other brakeman followed the engine. The plaintiff in giving an account of the injury, testified that he had been...