Southern Ry. Co. v. Shook

• Decision Date: 11 April 1907
• Citation: 150 Ala. 361,43 So. 579
• Parties: SOUTHERN RY. CO. v. SHOOK.
• Court: Alabama Supreme Court

43 So. 579

150 Ala. 361

SOUTHERN RY. CO. v. SHOOK.

Supreme Court of Alabama

April 11, 1907

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

Action by B. F. Shook, administrator, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This was an action by an employé of the defendant, or rather by the administrator of an employé, and the cause of the death was by reason of a defect in the condition of the ways works, machinery, or plant connected with or used by the defendant in its business. The defect is alleged to be that the baggage room used by defendant at said place was a box car on a side track by the main line on which defendant's said passenger train was run, and that said box car was so near said main line that, when the baggage car of the train was opposite thereto, there was insufficient space for plaintiff's intestate to handle the baggage from the said box car to said baggage car of the train after said train was put in motion as herein averred, and that the defect arose from and had not been discovered, etc. The second count avers the death of the intestate by reason of the negligence of a person whose name is unknown to plaintiff, in the service of the defendant, who had control and management of said train and had the authority to direct the said train to be started after its stop, and that this superintendence was intrusted to said person by the defendant, and that said person, while in the exercise of such superintendence, negligently caused said train to be put in motion. A great many demurrers were interposed to both of these counts, which are unnecessary to be here set out. The other facts sufficiently appear in the opinion of the court. There was judgment for plaintiff in the sum of $1,990, and defendant appeals.

Humes &amp Speake, for appellant.

Bilbro & Moody, for appellee.

ANDERSON J.

The first count of the complaint attempts to set out a cause of action under subdivision 1 of the "Employer's Liability Act" (section 1749 of the Code of 1896), which provides against a defect in the ways, works, machinery etc.; but in attempting to describe the defect it fails to show that there was any defect, or that the intestate's death was the result of a defect, if one existed. The placing or leaving of the box car on the side track was at most an obstruction, and in no sense constituted a defect in the ways, works, etc. L. & N. R. R. v. Bouldin, 110 Ala 185, 20 So. 325; K. C., M. & B. R. R. v. Burton, 97 Ala. 240, 12...