Tennessee Coal, Iron & R. Co. v. Herndon

CourtSupreme Court of Alabama
Writing for the CourtCOLEMAN, J.
Citation100 Ala. 451,14 So. 287
Decision Date04 December 1893
PartiesTENNESSEE COAL, IRON & R. CO. v. HERNDON.

14 So. 287

100 Ala. 451

TENNESSEE COAL, IRON & R. CO.
v.
HERNDON.

Supreme Court of Alabama

December 4, 1893


Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by John G. Herndon, as administrator of Thomas Page, deceased, against the Tennessee Coal, Iron & Railroad Company, for injuries to said Page, resulting in his death, alleged to have been caused by the negligence of defendant. From a judgment for plaintiff, defendant appeals. Affirmed.

The testimony for the plaintiff tended to show that his intestate, at the time of his death, was engaged in the service of the defendant as fireman on an engine which drew cinder pots from the pit in its furnace, where they were loaded, to the dumping ground; that at times it was plaintiff's intestate's duty to assist in unloading the pots full of cinder; that, when the accident occurred which resulted in his death, the deceased was assisting the regular "dumper" in turning the cinder out of the pots full of cinder, when it turned with such violence as to jerk him from his position on the trucks, and threw him into the molten mass of cinder. The evidence for the plaintiff further tended to show that there had been difficulty in removing the pot from the pit, and that, on account of the delay in so moving it, a hard crust had formed over the top of the pot, between 4 and 4 1/2 inches deep; and that, when the pot tilted, the crust not being broken, it was carried with such violence and force as to turn the cinder pot completely over. It was also shown by the testimony for the plaintiff that on this particular pot there were no safety chains, and that there were only two trunnion bolts, when in fact there should have been five; that the defendant's employes who were superior to the plaintiff's intestate, and who had charge of the cinder pots, were made cognizant of these defects before the accident. The testimony for the defendant tended to show that at the time of the accident the plaintiff was standing on the trucks which supported the cinder pots, when in fact he should have been standing on the ground in his effort to turn it, and that, after the crust had formed on the top of the cinders, the rules of the company required the dumper, whom the defendant was assisting, to break the crust before undertaking to turn out the cinder. There was also evidence for the defendant tending to show that, in cases where there was a crust formed over the top of the molten cinders, it was less dangerous not to have the safety chains. These respective contentions on the part of the plaintiff and defendant were supported by a great deal of evidence in behalf of each. Upon the examination of a witness for the plaintiff, he testified that upon being told, by the man whose duty it was to repair the cinder pots, to get a pot off of the hill, he did so, and got the one which was used by the plaintiff's intestate at the time of the injury; that he discovered that there were no safety chains on the cinder pot in question, and that he told this to the repairer. The plaintiff then asked the witness the following question: "What was it [the cinder pot] carried there for?" (on the hill.) The defendant objected to this question, the court overruled the objection, and the defendant excepted. The witness answered that it was carried there "for repairs;" that "we never carried them up on the hill, unless they were out of repair." Upon the examination of the engineer who was on the engine that drew the cinder pot on the occasion of the plaintiff's intestate's injury, he was asked the following question by the plaintiff: "What was done with the pots when they got out of repair, if anything?" The defendant objected to this question, the court overruled this objection, and the defendant excepted. The witness answered: "They were taken up to the repairing track on the hill." There was testimony for the plaintiff showing that he was 16 years old at the time of his death; that he earned $1.50 per day; that he spent about $30 per year in clothes; that his board cost between $14 and $18 per month, and that he was industrious and saving. The American Mortality Tables were introduced, and showed that, at the time of the plaintiff's intestate's death, his natural expectancy of life was 43.3 years.

After the introduction of all the evidence, the defendant requested the following charges, and separately excepted to the court's refusal to give each of them as asked: (1) "That if the jury believe the evidence they must find for the defendant under the second count of the complaint." (2) "That if the jury believe the evidence in this case they must find for a defendant." (3) "That if the jury believe from the evidence that the safer place for the dumpers to stand while dumping the slag from the pot was on the ground or roadbed, and that the plaintiff's intestate undertook to dump, or assist in dumping, said slag from another and more dangerous position, when they could have dumped the same by standing on the ground, then if you believe, if they had stood upon the ground, the plaintiff's intestate would not have been injured, I charge you that your...

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46 practice notes
  • Alabama Co. v. Brown, 6 Div. 135.
    • United States
    • Alabama Supreme Court
    • June 30, 1921
    ...142, note. I am of the opinion that only nominal damages may be recovered. C. of Ga. v. Alexander, supra; T. C. I. & R. Co. v. Herndon, 100 Ala. 451, 14 So. 287; Alabama Mineral R. Co. v. Jones, supra; Bromley v. Birmingham Mineral R. Co. supra; B. R., L. & P. Co. v. Mosely, 164 Ala. 111, 5......
  • Cofer v. Ensor
    • United States
    • Supreme Court of Alabama
    • April 12, 1985
    ...91 Ala. 635 (9 So. 77); Winslow v. State, 92 Ala. 78 (9 So. 728). Recovery solely for benefit of parents.--Tenn.C.I. & R. Co. v. Herndon, 100 Ala. 451 (14 So. 287). Parent can recover where minor could have recovered at common law, had he survived.--Lovell v. DeBardelaben, C & I Co., 90 Ala......
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coal Co. v. Setzer, supra; T. C. I. R. Co. v. Herndon, 100 Ala. 451, 14 So. 287; Hull v. Wimberly & Thomas Hdw. Co., 178 Ala. 538, 59 So. 568; L. & N. R. Co. v. Perkins, 1 Ala. App. 376, 56 So. 105; L. R. A. ......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...Ala. 398, 67 So. 604; Hull v. Wimberly & Thomas Hdw. Co., 178 Ala. 538, 59 So. 568; T. C. I. & R. R. Co. v. Herndon, Adm'r, 100 Ala. 457, 14 So. 287), it follows that every defense admitting the defendant to have been prima facie guilty of the homicide must be specially pleaded; that any ma......
  • Request a trial to view additional results
46 cases
  • Alabama Co. v. Brown, 6 Div. 135.
    • United States
    • Alabama Supreme Court
    • June 30, 1921
    ...142, note. I am of the opinion that only nominal damages may be recovered. C. of Ga. v. Alexander, supra; T. C. I. & R. Co. v. Herndon, 100 Ala. 451, 14 So. 287; Alabama Mineral R. Co. v. Jones, supra; Bromley v. Birmingham Mineral R. Co. supra; B. R., L. & P. Co. v. Mosely, 164 Ala. 111, 5......
  • Cofer v. Ensor
    • United States
    • Supreme Court of Alabama
    • April 12, 1985
    ...91 Ala. 635 (9 So. 77); Winslow v. State, 92 Ala. 78 (9 So. 728). Recovery solely for benefit of parents.--Tenn.C.I. & R. Co. v. Herndon, 100 Ala. 451 (14 So. 287). Parent can recover where minor could have recovered at common law, had he survived.--Lovell v. DeBardelaben, C & I Co., 90 Ala......
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coal Co. v. Setzer, supra; T. C. I. R. Co. v. Herndon, 100 Ala. 451, 14 So. 287; Hull v. Wimberly & Thomas Hdw. Co., 178 Ala. 538, 59 So. 568; L. & N. R. Co. v. Perkins, 1 Ala. App. 376, 56 So. 105; L. R. A. ......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...Ala. 398, 67 So. 604; Hull v. Wimberly & Thomas Hdw. Co., 178 Ala. 538, 59 So. 568; T. C. I. & R. R. Co. v. Herndon, Adm'r, 100 Ala. 457, 14 So. 287), it follows that every defense admitting the defendant to have been prima facie guilty of the homicide must be specially pleaded; that any ma......
  • Request a trial to view additional results

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