Southern Ry. Co. v. Carter

• Decision Date: 02 June 1909
• Parties: SOUTHERN RY. CO. v. CARTER.
• Court: Alabama Supreme Court

51 So. 147

164 Ala. 103

SOUTHERN RY. CO. v. CARTER.

Supreme Court of Alabama

June 2, 1909

Rehearing Denied Dec. 16, 1909.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Carl Carter against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The fifth count of the complaint is as follows: "Plaintiff claims of the defendant the sum of $25,000, for that heretofore, on, to wit, the 23d day of May, 1907, defendant was engaged in the business of running and operating a railroad in the state of Alabama, and particularly in the counties of Jefferson and Walker in said state; that plaintiff was a resident of Jefferson county, Ala., and was on said date in the employment of defendant in the capacity of flagman; that while in the discharge of his said duties as such employé of defendant upon said date, on defendant's railroad in Walker county, Ala., plaintiff was run over, his right leg cut off between the ankle and the knee, and he was otherwise bruised, mashed, mangled, and injured in his head face, limbs, and body, and suffered great physical and mental pain and anguish, was crippled and disfigured for life, and was rendered permanently less able to work and earn money. Plaintiff avers that said injuries were proximately caused by reason of the negligence of a person in the service or employment of defendant, whose name is unknown to plaintiff in charge or control of the locomotive engine upon defendant's railway; that said negligence consisted in this: Plaintiff, in discharge of his duties as defendant's employé, signaled with his flag for said engine to stop; that said engineer in obedience to said signal stopped said engine; that while plaintiff, in discharge of his duties as aforesaid, was engaged in and about boarding said engine, said engineer negligently permitted, caused, or allowed said engine to suddenly start forward, so that, as a proximate result of said sudden starting of said engine, plaintiff was thrown down and injured as aforesaid, all to plaintiff's damage," etc.

Demurrers were interposed to this count because (1) it fails to state a substantial cause of action; (2) it fails to aver or show that the injuries complained of were a proximate result of the negligence alleged.

Weatherly & Stokely, for appellant.

Gibson & Davis, for appellee.

SAYRE J.

This case went to the jury on count 5 only of the complaint, the rest having been eliminated without prejudice to the plaintiff in error. Demurrer to that count was properly overruled. H. A. & B. R. R. Co. v. Miller, 120 Ala 535, 24 So. 955.

Plaintiff in the court below, who was his own sole witness as to the occurrence which resulted in his injury, testified to his case substantially as follows: He was a flagman on a coal train of the defendant which was moving east in the direction of Birmingham. At Warrior Siding the train left the main line to let other trains pass. On making the effort to leave the siding, it was found that the engine was unable to pull the train, whereupon it was detached and moved forward to the next station, leaving the cars upon the siding. Upon the siding there was also standing a work train with its engine near the east end of the switch. Plaintiff was left with the cars of his own train, with instructions to flag the next following train, and tell the engineer to look out for the detached engine at the next station, and to "come in on it." As the next train, consisting of engine and caboose only, approached, plaintiff stood in the middle of the track of the main line and waved a red flag across the track. The approaching train stopped near the east switch and about 100 feet from where the plaintiff stood; its engine nearly abreast of the engine of the work train. To quote plaintiff's testimony: "I went on down there (meaning towards the engine), walking in the middle of the track, and as I went on down I turned on the lefthand side on the engineer's side, and started to get upon the engine, and caught hold of the handhold, and put my foot up, I believe, on the first step, and when I went to make the second step, he suddenly threw the steam on, and suddenly started up, and it threw me down, and it seemed to me like I got hung in the steps, and it dragged me a good piece, and I was knocked senseless. I saw the engineer. He was on the righthand side of the engine. I was on the lefthand side, facing the engine. The engineer was looking right down the track, right towards me. I passed under him, like, when I went to get on the engine, and I didn't see him when I went to get on the engine. He seemed to be looking down the track the last time I saw him, and I didn't look at him as I started to get on the engine and kind of walked under the engine." The engineer testified without contradiction that he had received orders at the last station he passed to pick up the train at Warrior Siding, and that he did not see the plaintiff at all on the occasion of his hurt until after the accident.

It thus appears that there was conflict in the evidence as to whether the engineer saw plaintiff as he...