Southern Ry. Co. v. McGowan

• Decision Date: 05 February 1907
• Citation: 43 So. 378,149 Ala. 440
• Parties: SOUTHERN RY. CO. v. MCGOWAN.
• Court: Alabama Supreme Court

43 So. 378

149 Ala. 440

SOUTHERN RY. CO. v. MCGOWAN.

Supreme Court of Alabama

February 5, 1907

On Rehearing, March 2, 1907.

On Rehearing.

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by John H. McGowan against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This cause was tried on the amended second count, which is as follows: "Plaintiff claims of the defendant, the Southern Railway Company, a corporation, the sum of $1,990 as damages for the injury inflicted upon plaintiff, as stated in this complaint, for that, at the time plaintiff was injured defendant was operating a railroad in this county, and plaintiff at said time was an employé in the service of the defendant in the said business; that plaintiff, in the performance of his duties as such employé, was assisting and propelling a hand car on defendant's railroad on or about the 25th day of February, near Facklers, in Jackson county that while so engaged the handle of said hand car broke and caused plaintiff to fall in front of said hand car, and that after falling said hand car ran upon him and dragged him some six or eight feet, breaking one of his ribs, and mashing and bruising and injuring his leg, hip, and thigh, causing him great mental and physical pain and suffering, and also causing him to employ at great expense a physician for the treatment, and to expend large sums of money for medicine and to lose his time from labor since this occurrence, and by permanently in a measure disabling him from work. And plaintiff avers that the handle of said car was weak and unsafe for service, and plaintiff avers that his injuries were caused by reason of the negligence of Henry Farmer, who was in the service or employment of the defendant, and who had, under his said employment, the superintendence of said car and the use thereof, and also superintendence of plaintiff, and that whilst in the exercise of such superintendence the said Henry Farmer negligently failed to keep the handle of said car in proper order and condition for use in defendant's service, and negligently allowed the use of said car by plaintiff in defendant's service in the said defective condition, to plaintiff's damages aforesaid."

Demurrer was interposed to this count: "Because it joins in one count two separate and distinct causes of action, arising under section 1749 of the Code of 1896 known as the 'Employer's Liability Act.' (2) It does not show that said Henry Farmer knew, or was negligent in not knowing that said handle of said car was in a defective condition. (3) It does not show that said defective condition arose from, or had not been discovered or remedied owing to defendant's negligence or the negligence of its agent intrusted with the duty of seeing that the same was in proper condition. (4) Because it does not show that said car was in a defective condition. (5) Because it does not show that said Farmer knew that said car was in a defective condition. (6) Because it does not show wherein said Farmer is negligent."

To this count, after demurrer overruled, the defendant filed pleas C and D, among others, which are as follows: "(C) Plaintiff proximately contributed to the injury and damage complained of by his own negligence, in this: He was holding said lever near the end, and was in front with his back turned in the direction the hand car was going, although there was plenty of room on the inside of the handle, which was a safer place for him to occupy, than that which he did assume, and, had he taken such position, he could not have been injured as alleged. (D) Plaintiff, when said injury occurred, was riding in said car in front of handle, with his back turned in the direction the car was going, and had hold of said handle near the end; whereas, there was a safer position he could have occupied in the discharge of his duties, namely, on the inside of or behind said handle, and fronting the way said car was going, and it was his duty to occupy said last-named position, and by his failure to do so he proximately contributed to the damage and injuries complained of."

Demurrers were interposed to C as follows: "(1) It does not show that plaintiff knew of the safer place. (2) It does not show that plaintiff was negligent in occupying the position alleged in said plea, and holding the handle as alleged." And to plea D: "It does not show that plaintiff knew of said alleged safer position, and it fails to show any negligence on the part of the plaintiff."

Plaintiff filed pleas 4, F, and G, as follows: Plea 4: "Plaintiff, after becoming aware of the existence of said defect, remained in defendant's service without notifying defendant thereof or requesting defendant to repair the same." Plea F: "Plaintiff had been working on said hand car for about two months, and knew the condition of said handle, and with such knowledge continued to use such handle without objection or request that the same be repaired." Plea G: "The condition of said handle is obvious, and, if it was in a defective condition, plaintiff assumed the risk attendant upon its use by him."

Demurrers were interposed to these pleas as follows: To plea 4: "For that said plea fails to show that plaintiff's act in remaining in defendant's service as alleged was a negligent act. (2) Said plea fails to show any act of negligence by plaintiff. (3) For aught that appears from said plea, defendant knew of said defects." To plea F: "(1) It does not show there was any obvious danger in using the handle. (2) It does not show that plaintiff knew of any danger in using said handle. (3) It does not show any act of negligence on plaintiff's part in using said handle." To plea G: "Because it does not show that plaintiff acted negligently in using said handle. (2) It does not show that plaintiff had knowledge of any danger in using said handle. (3) It is not alleged that there was obvious danger."

The plaintiff filed a replication to plea 3 as follows: "That the defendant already knew of said defects." Demurrers were interposed to this replication: "For that it does not appear therefrom that plaintiff was aware that defendant knew of said defects; and for that it is a departure from the first count of the complaint." These demurrers being overruled, the defendant rejoined, and said that plaintiff remained in the service or employment of defendant for an unreasonable time after he became aware that defendant knew of said defect and after defendant had failed to repair the same. Demurrers were interposed to rejoinder as follows: "For aught shown by the rejoinder, the plaintiff continued in defendant's service at defendant's instance. Said rejoinder is irrelevant to any issue raised as to any matter previously pleaded. The fact, if it be a fact, that plaintiff remained in the service of defendant, is no answer to discharge defendant of negligence."

The facts are sufficiently stated in the opinion.

In his oral charge to the jury the court said: "If it was not more dangerous for plaintiff to occupy the position he was occupying when he fell, except by reason of defendant's negligence or a defect in the handle of the car, then the fact that he did occupy that position would not bar a recovery, unless you should find that the plaintiff knew the position he was occupying when he fell was more dangerous than the one he left. Whether the defendant was negligent, as is charged in the complaint, or whether there was a defect in the handle, or whether such defect or negligence made the position occupied by the plaintiff when he was hurt more dangerous, you must determine from the evidence." And: "The employé, or the plaintiff in this case, would assume ordinarily the risk only of such dangers as are incident to his employment." And: "If the section foreman knew of the defect, if there was a defect, and if plaintiff also knew of it, he was not bound to give any notice of it." And: "It is not necessary for plaintiff to prove that the hollow or split in the handle was the cause of the injury. It is simply necessary to show that the handle was an unsafe timber to operate the car with; that is, you must be reasonably satisfied from the evidence that it was unsafe for the service." And: "It is not necessary to a recovery under the first count to prove that all the defects named therein caused the injury." And: "If you find that plaintiff is entitled to recover, then he is entitled to recover such an amount as under the evidence, you think proper--such an amount as you in your discretion see fit--not exceeding the amount claimed in the complaint." And in this connection the court said that, if plaintiff was entitled to recover, he should have reasonable compensation for pain and suffering and loss of time and physical injury sustained by him, caused by defendant's negligence, and that the amount of damages lay in the discretion of the jury, which should not be more than fair and reasonable compensation for plaintiff's sufferings and injuries. Exceptions were reserved to all these portions of the court's oral charge.

At plaintiff's request the court gave the following written charges: "(1) The court charges the jury that, if it appears from the evidence that plaintiff could reasonably have used a less dangerous way to work the handle of the lever of the car, this will not of itself bar his recovery. It must further reasonably appear from the evidence that the plaintiff knew he was using a more dangerous way, that such use of a more dangerous way was negligence, and that this negligence was the proximate cause of his injuries. (2) The court charges the jury that it was the duty of the defendant to be reasonably prudent and cautious in selecting a handle for the lever of...