St. Louis & S. F. R. Co. v. Phillips

• Decision Date: 02 February 1910
• Citation: 51 So. 638,165 Ala. 504
• Court: Alabama Supreme Court
• Parties: ST. LOUIS & S. F. R. CO. v. PHILLIPS.

51 So. 638

165 Ala. 504

ST. LOUIS & S. F. R. CO. v. PHILLIPS.

Supreme Court of Alabama

February 2, 1910

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Action by J. M. Phillips against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Count 1 was as follows: "The plaintiff claims of the defendant $5,000 in damages, in this: At the time of the infliction of the injuries herein complained of, on, to wit, the 27th day of April, 1906, the defendant was engaged in operating steam locomotives, engines, and cars on its railroad in Walker county, Alabama; that plaintiff was in the employ of defendant on one of its locomotives, and while in the employment of defendant, and performing the duties incident to his said employment, plaintiff was struck on the head by a coke car, and his jaw was broken, and he was made sick and sore. [Here follows a catalogue of his injuries and special damages, coupled with the allegation that he is permanently injured.] All of said wrongs and injuries was suffered by the plaintiff by reason of a defect in the condition of the ways works, machinery, and plant, used in or connected with the business of the defendant, to wit, a defect in the condition of the roadbed or railroad of defendant's railroad, which defect the defendant had negligently failed to remedy. Plaintiff avers that his said injuries and damages were caused at or near Dora, in Walker county, Alabama."

The demurrers to this count were numerous, and not necessary to be here set out. The following pleas were filed by the defendant: (2) "That plaintiff was guilty of negligence which proximately contributed to his injury, in this: That he knew that the car upon the side track which struck him was in close and dangerous proximity to the track upon which the engine was passing, and he negligently failed to use ordinary prudence from being struck by said car, while the engine upon which he was riding passed the same." (4) "Defendant says that plaintiff was guilty of negligence which proximately contributed to his injury, in this: That he was the fireman upon the switch engine at the time of his injury, and that at the time of his injury it was his duty to keep a lookout for obstructions upon or in dangerous proximity to the engine upon which he was riding; but, neglecting this duty, he negligently failed to keep said lookout, and was thereby struck by a car which was in close proximity to the engine upon which he was at the time riding." (5) "Proximately contributory negligence, in this: That at the time of his injury the engine upon which he was riding was backing up, and that it was the duty of the plaintiff to keep an ordinarily prudent lookout to discover obstructions upon or near the track in the direction in which the said engine was going, and as a proximate result thereof he was struck by a car standing on said track, and was thereby injured." (6) "Proximate contributory negligence, in this: The plaintiff knew of the defect or negligence causing his injury, and failed within a reasonable time to give information thereof to the master or employer, or to some person superior to himself engaged in the service or employment of the master, and thereby proximately causing his injury." (7) "Proximate contributory negligence, in this: That plaintiff knew, or by the exercise of ordinary care and prudence could have known, of the defect or negligence causing his injury, and failed within a reasonable time to give information thereof to the master or employer, or to some person superior to himself engaged in the service or employment of the master." (8) "Proximate contributory negligence, in this: That at the time the car upon the side track which struck plaintiff was placed in the position at which it was standing when plaintiff was struck, plaintiff knew where said car was placed, and thereafter passed the said car in the same position in which it was placed safely, by remaining in a safe position upon his engine; but thereafter, while passing said car, the plaintiff negligently protruded his head or body from the engine upon which he was employed, and that while in this position he was struck and injured." (9) "Proximate contributory negligence, in this: That he negligently failed to keep a lookout for obstructions upon or near the track in the direction in which his engine was at the time moving, and he thereby came to his injury."

The demurrer to plea 2 was as follows: "It does not answer all it purports to answer. It is insufficient as an answer to count 1." To plea 4, the following demurrers: "It does not answer all it purports to answer. It is a mere conclusion of the pleader. It fails to show any proximate connection between the failure to keep a lookout therein averred, and the injury to the plaintiff." To plea 5: Same as 4. To plea 6: "It does not appear therefrom that any duty rested on the plaintiff to report any negligence to any one." To pleas 8 and 9: The same as 2. Separate demurrers to 9 the same as to plea 4. Replication 3 to plea 6 is as follows: "For further replication to plea 6, plaintiff says: That any defect or negligence within his knowledge was also known to the engineer of the said engine, in the service or employment of defendant superior to plaintiff, and he was not, therefore, required to report any such negligence or defect."

The third ground of demurrer thereto is: "Knowledge of the engineer of the defects, or negligence, did not excuse plaintiff from reporting the same."

The following charges were refused to the defendant: (1) "The court charges you that you cannot find for the plaintiff on account of the car being left where it was standing when the plaintiff struck it." (2) "The court charges you that you cannot find for the plaintiff on account of the rate of speed at which the engine was running at the time he was hurt." (3) "I charge you that, if you are reasonably satisfied from the evidence that the plaintiff knew of the defect in the track or roadway, and failed for an unreasonable time to give information concerning it to some person superior to himself in the employment of the defendant, then you cannot find for the plaintiff on the count charging the defect in the condition of the track or roadway." (4) Affirmative charge as to the fifth count. (5) "If you believe from the evidence that plaintiff negligently failed to keep a lookout for obstructions upon or near the track in the direction in which the engine was moving, you cannot find for the plaintiff on account of the position of the car on the adjoining track." (6) General affirmative charge. (7) Affirmative charge as to the first count. (8) Affirmative charge as to the second count. (9) "The court charges you that, if you believe from the evidence that at the time of his injury it was plaintiff's duty to keep a lookout for obstructions upon or in dangerous proximity to the engine upon which he was riding, but that he failed to keep said lookout, and was thereby struck by a car which was in close proximity to the engine upon which he was at the time riding, you cannot find a verdict for the plaintiff on account of the placing of a car where it was standing." (10) "If the jury believe from the evidence that the plaintiff had knowledge of the defective condition of the roadway or track, and of the dangers of riding over the same on an engine, and the plaintiff continued to ride over the same on an engine until he was hurt, you cannot find a verdict for the plaintiff on account of the defective condition of the roadway or track." (11) "The court charges you that the plaintiff assumed all the risk and dangers incident to working on a locomotive engine."

Bankhead & Bankhead, for appellant.

G. O. Chenault and W. L. Chenault, for appellee.

EVANS J.

Appellee brought suit against appellant for damages for personal injuries. Appellee was a locomotive fireman in the employ of appellant in Walker county, Ala., at the time of the injury complained of. The suit was brought under section 1749 of the Code of 1896. There are 30 assignments of error by appellant to the rulings of the court below. In his brief appellant does not insist upon assignments 1, 2, 3 (3a), 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 22. We, therefore, treat those assignments as waived.

The demurrer to first count was properly overruled. Said count as to its general allegation of defect, was in the language of the statute under which the suit was brought; and was, therefore, sufficient. After the general allegations of defect, in accordance...