Stewart v. Louisville & N.R. Co.

• Decision Date: 06 January 1888
• Citation: 4 So. 373,83 Ala. 493
• Court: Alabama Supreme Court
• Parties: STEWART v. LOUISVILLE & N. R. CO.

4 So. 373

83 Ala. 493

STEWART v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

January 6, 1888

Appeal from city court of Mobile; WILLIAM E. CLARKE, Judge.

Action for personal injuries causing death. This action was brought by Louis Stewart, Joseph Russell and others, infants, suing by their mother as next friend, as the heirs at law of Charles Russell, deceased, to recover damages for the alleged negligence of the defendant, the Louisville & Nashville Railroad Company, which caused the injuries resulting in his death. Said Charles Russell was, at the time of his death, in the employment of the defendant corporation as a brakeman and he was killed on the night of September 26, 1886, being struck by the timbers of a bridge while on the top of a freight car in discharge of his duties as a brakeman. The action was commenced on the 19th February, 1887, and was founded on the act approved February 12, 1885, entitled "An act to define the liabilities of employers of workmen for injuries received by the workmen while in the service of the employer." Sess. Acts 1884-85, p. 115. The court sustained a demurrer to the complaint on the ground that the right of action, if any existed, was in the personal representatives, and the plaintiffs appeal.

G L. & H. T. Smith, for appellant.

Gaylord B., Frank B., & Levert Clark, contra.

STONE C.J.

In the absence of statutes, no one could maintain an action for the injury complained of in this case, followed, as that injury was, by the death of the party injured. Hence, we must consult the statutes, alike for the right of action and for the manner of its enforcemeut. 3 Wood, Ry. Law, § 419. In England, and in many of the states, statutes have been enacted giving a right of action where death has ensued from the wrongful or negligent act of another, or of a corporation, 3 Wood, Ry. Laws, § 410. A remedy was provided in this state in cases "when the death of a person is caused by the wrongful act or omission of another," by the act "to prevent homicides," approved February 5, 1872. Sess. Acts, 83; Code 1876, § 2641. It was held however, and has been uniformly so ruled in most, if not all, the states, that "there can be no recovery of the master by one for an injury inflicted upon him through the negligence of his co-servant," unless the master or employer is chargeable with the employment of an incompetent person, through whose negligence or incompetency the injury is inflicted. 3 Wood, Ry. Law, p. 1494,§ 388; Railway Co. v. Smith, 59 Ala. 245; Tyson v. Railroad Co., 61 Ala. 554; Smoot v Railway Co., 67 Ala. 13; Blake v. Railroad Co., 70 Me. 60, 35 Amer. Rep. 297; Brown v. Railroad Co., 27 Minn. 162, 6 N.W. 484; Smith v. Potter, 46 Mich. 258, 9 N.W. 273; Crutchfield v. Railroad Co., 78 N.C. 300. The imperfection in the law was attempted to be remedied by the "Act to define the liability of employers of workmen for the injuries received by the workman while in the service of the employer," approved February 12, 1885. Sess. Acts, 115. That statute declares that, in case of such injury "by reason of any defects in the condition of the ways, works, machinery," etc., "the workman, or, in case the injury result in death, the heirs at law of the workman, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of, the employer, nor engaged in his work." We encounter several difficulties in interpreting the foregoing language. "Heirs at law" is not a technically accurate form for defining distributees,-next of kin,-upon whom the law devolves the succession, when a decedent leaves personal effects. Such effects pass to the personal representative for administration, and reach the legatees or distributees only through him. But the statute presents a greater difficulty. It declares that, "in case the injury result in death, the heirs at law of the workman shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service, of the employer, nor engaged in his work." Treating, as we think we must, the phrase "heirs at law" as intended to mean next of kin, we encounter the obstacle that...