Southern Ry. Co. v. Guyton

• Decision Date: 17 January 1899
• Citation: 25 So. 34,122 Ala. 231
• Parties: SOUTHERN RY. CO. v. GUYTON.
• Court: Alabama Supreme Court

25 So. 34

122 Ala. 231

SOUTHERN RY. CO. v. GUYTON.

Supreme Court of Alabama

January 17, 1899

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by Charles H. Guyton against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

This action was brought to recover damages for personal injuries to the plaintiff, alleged to have been caused by reason of the negligence of the defendant. The complaint contained five counts. The first count, after alleging that the defendant was a railroad company operating a railroad, and that the plaintiff was in the employ of the defendant in the capacity of a section hand, and was so engaged at the time of the accident, then alleges that while so engaged it became the duty of plaintiff to be upon a hand car operated by the defendant on its road, while the same was in motion, and that a pair of trucks, consisting of two pairs of wheels, while following said hand car down a grade upon the road of defendant's track, collided with said car, and the hand car was thrown from the track, and, as the proximate consequence thereof, the plaintiff's foot was broken mashed, and lacerated, from the effects of which injury the plaintiff was crippled, and rendered permanently less able to work than before. The first count then alleges the negligence as follows: "Plaintiff avers that said car was thrown or jumped from the track as aforesaid, and plaintiff's said injuries and damages were caused by reason of defects in the condition of the ways, works, machinery, or plant connected with, or used in, the said business of defendant, which said defects arose from, or had not been discovered or remedied owing to, the negligence of defendant, or of some person in the service of defendant, and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition, viz. the track at said place of derailment was not sufficiently firm, strong, and in line." In the second and third counts the plaintiff adopted all of the first count, down to and including the word "viz.," and then in the second count it averred that "said hand car was out of plumb," and in the third count averred that "the said hand car was so improperly adjusted that it was likely to jump or be thrown from the track." In the fourth count the plaintiff adopted the prefatory averments of the first count, and then further averred "that said car was thrown or jumped from the track as aforesaid, and plaintiff's said injuries and damages were caused by reason of the negligence of a person in the service or employment of defendant, who had superintendence intrusted to him, while in the exercise of such superintendence, viz One Hixon, a section boss of defendant, negligently caused or allowed said wheels to follow said hand car down grade as aforesaid, without proper and sufficient care and precaution to prevent said wheels from colliding with said hand car." To the fifth count the defendant's demurrers were sustained, and it is therefore unnecessary on this appeal to set out the allegations of said count. The defendant demurred to the second and third counts of the complaint upon the following grounds: "(1) Because the defect complained of is not sufficiently set forth therein (2) because it is not averred with sufficient certainty wherein said hand car was defective." This demurrer was overruled, and the defendant duly excepted. Thereupon the defendant pleaded the general issue, and the following special pleas: "(2) And, for further answer to each of said first and fourth counts of the complaint, defendant says that the plaintiff was himself guilty of contributory negligence, in this: that he failed to use due and proper care for his own safety after he became aware of the danger of a collision of said wheels with said car, by reason whereof he suffered the injury complained of. (3) Defendant further answering each of said first and fourth counts, says that the plaintiff voluntarily incurred the danger of collision which resulted in his injury, by reason whereof he sustained the injury complained of. (4) Defendant, further answering each of said first and fourth counts of the complaint, says that the plaintiff, with knowledge or notice of the danger of collision between said wheels and said car voluntarily remained on said car in a place of danger, by reason whereof he sustained the injury complained of." "(6) Defendant, for further answer to the complaint and to each count thereof, says that the plaintiff was aware of the fact that the said trucks were on the track behind said lever car, and were following it, and that they were to be propelled in that condition, and that it was dangerous and unsafe to do so, and dangerous and unsafe for him to then and there ride on said lever car on its trip down said grade, but he negligently got upon said car, and negligently did ride thereon, and thereby voluntarily incurred the risk of injury to himself, and that his doing so proximately contributed to his injury. (7) Defendant, for further answer to the complaint and to each count thereof, says that the plaintiff, with knowledge or notice of the danger of collision between said wheels and said car, voluntarily and negligently remained on said car in a position which was unsafe and dangerous, whereby and by reason whereof he was injured." In the judgment entry it is recited that demurrers to the second and third pleas were sustained, and demurrers to the sixth and seventh pleas were overruled, but these demurrers do not appear in the record.

On the trial of the cause, the evidence showed that the plaintiff was in the employment of the defendant as a section hand, and was in the squad controlled by his brother, J. D. Guyton, who was a section foreman; that on the day of the accident said J. D. Guyton, W. E. Hixon, and one Brooks, three section foremen, together with their section hands, were at work at a wreck which had occurred in the section presided over by W. E. Hixon; that, during the work in the adjustment of said wreck. It was necessary to have the trucks of a pole car, which had been left on the side of a track by Section Foreman J. D. Guyton; that plaintiff knew where said trucks had been left, and that he went with Section Foreman Hixon and some of his men on the hand car, known as a "lever car," to show them where said trucks were; that the trucks were placed on the track immediately behind the lever car, without being coupled or connected with it; that, as they started back to the scene of the wreck, they were on a down grade (described by some of the witnesses as a "heavy down grade"), and the trucks followed the lever car of their own momentum; that the plaintiff was standing on the back of the lever car, and, after going about a quarter of a mile, the lever car jumped the track, at which time the trucks following it collided with it, and in the accident the plaintiff suffered the injuries complained of.

W.E. Hixon, the section foreman, as a witness, testified that he had no control over the plaintiff, and was not authorized to give him any orders, and that the plaintiff volunteered to show him where the trucks were, and, without being requested, assisted his (Hixon's) squad in placing the trucks on the track.

J.D. Guyton, as a witness, testified that he and the other two section foremen were under the control of Road Supervisor Nelson, and that Nelson instructed Guyton to send his squad of men to work under Foreman Hixon at the wreck; all of the section hands being instructed that they must do whatever said Hixon instructed them to do.

The plaintiff, as a witness in his own behalf, testified that while he was at work at the scene of the wreck, under such instructions from Section Foreman Guyton, he was asked by Hixon to go with his men to show him where the trucks were and that it was in obedience to this direction from Hixon that he was on the hand...