Southern Ry. Co. v. Harrison

• Decision Date: 07 November 1914
• Docket Number: 768
• Citation: 67 So. 597,191 Ala. 436
• Parties: SOUTHERN RY. CO. v. HARRISON.
• Court: Alabama Supreme Court

67 So. 597

191 Ala. 436

SOUTHERN RY. CO. v. HARRISON.

No. 768

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Action by Flora Harrison, as administratrix, against the Southern Railway Company, for damages for the death of her intestate. Judgment for plaintiff, and defendant appeals. Affirmed.

Stokely Scrivner & Dominick, of Birmingham, for appellant.

Allen &amp Bell, of Birmingham, for appellee.

ANDERSON C.J.

There was no error in sustaining the plaintiff's demurrer to the defendant's special pleas 9, 10, and 11. Plea 9 sets up the violation of a rule of the Mobile & Ohio Company, but does not set up any facts to show that said rule was made for defendant's benefit, or that it was in any wise connected therewith. Pleas 10 and 11 set up a violation of the defendant's rules, but fail to show any facts making the plaintiff's intestate subject thereto or bound by them. The intestate was employed by and was working for the Mobile & Ohio Company, and the rules of this defendant as to its own brakemen had no application to the servants of the Mobile &amp Ohio Company.

Nor can we pronounce the pleas good as to contributory negligence upon the theory that the intestate, independent of the rules, voluntarily placed

himself in a place of danger, as the averment that he negligently rode upon the engine is a mere conclusion. One of the pleas says he was riding in the fireman's seat on the engine, while the others simply aver that he was negligently on the engine.

We cannot say as matter of law that it is negligence upon the part of a brakeman to ride upon the engine. He might be much safer upon certain parts of the engine than upon the top of the cars. The case of Warden v. L. & N.R.R. Co., 94 Ala. 277, 10 So. 276, 14 L.R.A. 552, is not an authority to uphold the pleas in question. There the court was not dealing with pleading, but with the evidence, which showed that the plaintiff improperly left the place where he belonged and was riding upon the pilot or crossbeam to which the cowcatcher was attached, with his legs hanging out in front of the pilot, and this while the train was out on the main line proceeding from one station to another, and when the only duty he could have possibly had to perform was upon the top of the train.

The trial court committed no reversible error in declining to let the defendant ask the witness Ernest, on cross-examination, to state whether or not he was laid off by the Southern Railway Company on the morning of the accident. The witness had just stated he had not worked for the defendant since that time, and it was therefore immaterial to the issues involved whether he quit or was laid off by the company, unless, as now suggested in brief of counsel, that the fact that he was laid off by the defendant was a circumstance showing ill feeling towards the said defendant, and was a circumstance affecting his credibility. If this be true, the purpose or relevancy of the evidence should have been suggested to the trial court, as there is nothing in the question which would indicate that it was being asked to show bias on the part of the witness. Moreover, the more proper and orderly way to have shown bias or ill will was to have asked the witness the direct question as to his state of feeling towards the defendant, and he may have admitted that it was bad. On the other hand, if he said it was good, then the defendant could resort to the introduction of facts and circumstances showing that the witness was biased against the defendant.

We do not think that the...