Southern Ry. Co. v. Goins
| Decision Date | 31 May 1911 |
| Citation | 1 Ala.App. 370,56 So. 253 |
| Parties | SOUTHERN RY. CO. v. GOINS. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.
Action by Orlando Goins, by his next friend, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Paul Speake, for appellant.
James Jackson, for appellee.
This is an action for personal injuries suffered by the plaintiff while engaged in operating a turntable for the defendant company, and the complaint is in five counts. The fifth count (designated as "A") was eliminated by the charge of the trial court, and need not be further noticed.
Counts 1, 2, 3, and 4 aver a defective condition of the wooden flooring of the turntable on the side of the rails, over which plaintiff walked while discharging his said duty; there being broken planks and holes therein, and the gangway between the ends of the table being a plank only eight or ten inches wide laid over and across said holes, and about six feet above the ground underneath. The gravamen, however, of counts 1, 2, and 3, is not the defect of the way, but the negligence of the engineer in charge of an engine which he had placed upon the table to be turned; the charge being that said engineer negligently (in counts 1 and 2) and "wantonly, willfully, or recklessly" (in count 3) caused or permitted a large volume of steam to escape, which steam so hid the plankway from plaintiff's sight (in counts 1 and 3), and so burnt or shocked him (in count 2), as to cause him to miss his footing and fall; he then being on the table and crossing the plank in and about his duty in the premises.
Count 4 sets forth the negligence of the engineer and its causation of injury in terms practically identical with those employed in counts 1 and 3; and it also sets forth the defective condition of the gangway, with the supplementary averments requisite to the statement of a good cause of action therefor, except that it does not charge that the defect was the proximate cause of plaintiff's misstep and injury.
To the several counts of the complaint, an aggregate of 66 grounds of demurrer were interposed; and these being overruled en masse the defendant pleaded the general issue and 14 special pleas. To these special pleas, a total of 62 grounds of demurrer were filed, to say nothing of 7 special replications, which latter in turn provoked a new and formidable host of demurrers, which almost defy enumeration.
The action of the court in sustaining or overruling these various demurrers makes up the bulk of the assignments of error. The appellant also complains of the refusal of the trial court to give for it the general affirmative charge as to the whole complaint, and as to counts 1, 2, 3, and 4 separately, and also of the overruling of its motion for a new trial.
We have endeavored with patient industry to thread the labyrinth of pleading, and to trace and chart the course of legal principle through its perplexing mazes. But we deem it unnecessary to pass upon all of the numerous assignments of error, and will confine our discussion to those which are most vital and decisive.
1. A complaint framed under subdivision 5 of the statute, counting upon the negligence of a fellow servant in charge of an engine, must aver that such engineer knew, or had reason to believe, that the act in question would be likely to injure plaintiff, or that plaintiff was then within the line of danger from such act. L. & N. R. R. Co. v. Bouldin, 110 Ala. 185, 200, 20 So. 325. Otherwise it shows no breach of duty on the part of the defendant. The first ground of demurrer should therefore have been sustained to counts 1 and 2, since such an averment is wholly wanting. Count 3 is not open to this objection.
2. While counts 1, 2, and 3 all set up the defective condition of the gangway across the turntable, this is predicated only as descriptive of the environment by means of which the engineer's alleged negligence was aggravated and rendered efficient in producing the disaster to plaintiff. Randle v. Birmingham Ry. Co., 53 So. 918. These counts are not, therefore, obnoxious to the rule that separate causes of action arising under different subdivisions of the statute cannot be included in the same count.
3. None of the counts show that plaintiff assumed the risk of the mishap that occurred, nor that he was guilty of contributory negligence in bringing it about, and the grounds of demurrer directed to these supposed faults were properly overruled. A defective way may often be used in...
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