Southern Ry. Co. v. Cooper

Citation55 So. 211,172 Ala. 505
PartiesSOUTHERN RY. CO. v. COOPER.
Decision Date06 April 1911
CourtSupreme Court of Alabama

Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.

Action by Richard L. Cooper against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The original first count was as an employé injured by being struck by an engine while attempting to cross the track to deliver orders to other employés. The second count was for negligently running the engine against the crossing without giving the signal required. The third count was practically the same as the second, as is the fourth. The amended first count is as follows: "Plaintiff claims of the defendant the sum of $25,000 as damages, for this: That defendant is a corporation, and on, to wit, the 4th day of May, 1906, and prior thereto, was, and now is, the owner of a railroad track in the corporate limits of the city of Tuscumbia, Ala., and over which said track the defendant ran and now runs an engine and cars; that said track at the time mentioned was laid in the public street in the city of Tuscumbia, Ala., and ran east and west, or nearly so; that the said street was a public thoroughfare of said town, used by pedestrians and persons and vehicles; that on the 4th day of May, 1906, the plaintiff was lawfully walking east along the side of said railroad track in a public street crossing in said city preparatory to crossing the same at a public street crossing within the limits of sad town of Tuscumbia, Ala., a station on defendant's said railway, and defendant's agents and servants were engaged in running and operating an engine upon and over said railroad and along said street, and so negligently and carelessly conducted themselves in and about the operating of said engine that the said engine was caused to run against said plaintiff at said street crossing striking him, and throwing him on the said track of said railroad, and causing the said engine to pass over the leg of plaintiff, whereby his leg was crushed and mangled, and it became necessary to amputate one of his legs, and for most of the time since said injury plaintiff has been confined to his bed and room, and plaintiff has suffered great physical and mental pain, and has been rendered permanently crippled." Count 6 is practically the same as count 1 except that it is amplified as to how the accident occurred and as to the character and extent of the injury and special damages, with these additional averments: "And plaintiff avers that said injury was caused by the negligence of defendant; that the defendant, by its agent or agents, was negligently operating along said track a locomotive that was defective and dangerous; that said locomotive, or that part thereof called the tender, was provided with an iron step, which is attached to and properly hangs under said tender; that said step was of great length, to wit, two feet; that the same was bent out of place and twisted, and projected some distance beyond the edge or side of said tender and said track and over the street, and the same was dangerous to passengers on said street. Plaintiff avers that he was walking along said track in said public street, where he had a right to be, and at such a distance therefrom that he would not have been struck by an ordinary locomotive and tender, and would not have been struck by said locomotive or tender at the time, but for the said bent or twisted step which extended outside the said track when he was struck by said step on the tender as the locomotive passed him, and was injured as aforesaid. And plaintiff avers that at the point where he was struck and injured as aforesaid there was a public thoroughfare, to wit, Water street crossing Third Fifth avenue, and he was at the time he was injured in said street crossing. Plaintiff further avers that, at the time he was injured as aforesaid, he was an employé of the defendant, and engaged in delivering orders to make up crew for its train, and he was then and there engaged in his said duties."

Paul Speake, for appellant.

James Jackson and George P. Jones, for appellee.

McCLELLAN J.

This case was tried on counts 1 and 6 as last amended.

The original complaint, consisting of four counts, undertook to declare on a cause of action, in varying forms, under the employer's liability act (Code 1907, § 3910).

Subsequently and against defendant's (appellant's) objection, on the ground of departure, plaintiff (appellee) was allowed to amend his complaint by filing a new count (1) wherein the gist of the action was injury, due to negligent conduct or omission of defendant's servants on the engine, to a person unrelated in employment to defendant on a highway upon a public crossing thereby of a railway. Further amending his complaint, against defendant's objection, on the same ground as was opposed to the allowance of the new first count, the plaintiff was allowed to state his case in an amended count 6. This count followed new count 1 in the allegation of the circumstances attending the injury, but the addition by amendment of the clause to follow effected to bring the count under the influence of subdivision 5 of the liability act. "Plaintiff further avers that at the time he was injured as aforesaid he was an employé of the defendant and engaged in delivering orders to make crew for its train and he was then and there engaged in his said duties." Hence there was no semblance of departure from the original complaint. Nor was there a departure effected--a change of cause of action--by the rewriting of count 1. Ala. Con. C. & I. Co. v. Heald, 154 Ala. 580, 45 So. 686. That decision establishes this test of the propriety of the allowance of an amendment under our statute, even before the last codification, and gives such allowance the effect, in relation back to the institution of the suit, to avoid the running of the statute of limitation, viz., that the amendment declare on a cause of action that would be barred by the recovery on the cause of action described in the original pleading, and vice versa. There are decisions, delivered here, opposed in principle and doctrine to the test expressed, as stated, in the Heald Case, but these cases must be taken as not in...

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11 cases
  • Turner v. Missouri-Kansas-Texas R. Co.
    • United States
    • Missouri Supreme Court
    • May 4, 1940
    ... ... on file here discloses that the defendant contended the boy ... was guilty of contributory negligence as a matter of law. In ... Southern Ry. Co. v. Cooper, 172 Ala. 505, 515, 55 ... So. 211, a boy walking 24 inches from the track was ... struck by the bent out step on a passing ... ...
  • Wright v. McCord
    • United States
    • Alabama Supreme Court
    • December 16, 1920
    ... ... operate as a passing from law to law. Ala. Cons. C. & I ... Co. v. Heald, 154 Ala. 580, 45 So. 686; Sou. Ry. Co ... v. Cooper, 172 Ala. 505, 511, 55 So. 211; Mole v ... Wallis, 1 Levinz, 81; Woods v. Haukshead, ... Yelverton's Rep. 14. McCord did not interpose ... ...
  • Foreman v. Dorsey Trailers
    • United States
    • Alabama Supreme Court
    • October 11, 1951
    ...necessary to that end by the statute, and a general averment of negligence by a fellow servant is not sufficient. Southern Ry. Co. v. Cooper, 172 Ala. 505(8), 55 So. 211; Sloss-Sheffield Steel & Iron Co. v. Bibb, 164 Ala. 62(8), 51 So. 345; Seaboard Mfg. Co. v. Woodson, 94 Ala. 143(1), 10 S......
  • Reed v. Ridout's Ambulance, Inc.
    • United States
    • Alabama Supreme Court
    • January 22, 1925
    ... ... v. Mosely, 164 Ala. 111, 51 So. 424; L. & N.R.R ... Co. v. Holland, 164 Ala. 73, 51 So. 365, 137 Am.St.Rep ... 25; South. Ry. Co. v. Cooper, 172 Ala. 505, 55 So ... 211. Manifestly, also, the count is defective in not showing ... that defendant owed to plaintiff that duty of ... ...
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