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

• Decision Date: 30 June 1905
• Citation: 39 So. 902,144 Ala. 229
• Parties: TENNESSEE COAL, IRON & R. CO. v. BRIDGES.
• Court: Alabama Supreme Court

39 So. 902

144 Ala. 229

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

Supreme Court of Alabama

June 30, 1905

Appeal from Circuit Court, Colbert County; E. B. Almon, Judge.

"To be officially reported."

Action by G. M. Bridges, as administrator of Arthur A. Hughes deceased, against the Tennessee Coal, Iron & Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Rehearing denied January 9, 1906.

This was an action by the administrator of Arthur A. Hughes. The said Hughes having died between the trial of this cause in the lower court and the time of the submission of this cause in this court, revivor was had in the name of J. M. Bridges as administrator. The complaint contained eight counts; the first four counting on the negligence of the defendant through its servant, Jim Street, the engineer in charge of defendant's engine, by negligently running his engine against defendant and knocking him off the trestle. Jim Street is alleged to be a fellow servant. The first count declares that the injury was wantonly or recklessly done. The other three are in simple negligence. Demurrers were interposed to these counts: To the first count because (1) therein and thereby plaintiff seeks to hold the defendant liable for the wanton, reckless, or intentional act of a fellow servant, and fails to allege or show that such act was done under the direction or instruction of the defendant; (2) said count of complaint shows that the injury complained of was caused by the negligence of the fellow servant of plaintiff, and fails to show or allege any negligence on the part of defendant in the selection of such fellow servant. To the second count because (1) said count fails to allege or show that the defendant owed plaintiff any duty at the time and in the place where the injury complained of occurred. To the fourth count because (1) said count fails to allege or show that the defendant owed plaintiff any duty at the time and in the place where the injury complained of occurred. To each count of the complaint because said complaint and each count thereof fails to show where the injury complained of occurred.

Plaintiff added the fifth, sixth, seventh, and eighth counts. The fifth count alleges that the defendant was engaged in operating a glass furnace in Colbert county, and was in the corporate limits of Sheffield; and in connection therewith and accessory thereto the defendant was at the same time operating locomotives or switch engines and cars upon railroad tracks and the handling of material for and the products of said furnace; that plaintiff was employed by said company in the capacity of trestle foreman, and was in the active discharge of his duties upon said trestle when it was being used by the defendant in its said business, when he was recklessly, wantonly, or intentionally injured by the defendant, through its servant, one Jim Street, who is alleged to have been employed by defendant, and was at the time working for defendant, in the capacity of engineer, and who so wantonly or recklessly handled the engine of which he was in charge as to knock plaintiff off the trestle. The sixth count is in simple negligence, and contains practically the same allegations that are contained in the fifth count leaving out the wanton, reckless, or intentional feature of it. The seventh count is similar in all respects to the fifth count, except it alleges that one John Gay, who was in the employment of the defendant, working on said trestle, caught hold of the car which was being operated by defendant through its agent, Jim Street, recklessly and wantonly, to prevent being knocked off, and that the engineer in charge of the engine propelling the car recklessly, wantonly, or intentionally ran said engine and car, with the said John Gay holding thereto, along the trestle, so that the body of said John Gay struck the plaintiff and knocked him from the trestle. The eighth count is a repetition of the seventh count, but alleges simple, instead of wanton, negligence. Demurrers were interposed for all the counts except count 6.

The following charges were refused to the defendant: "(3) Gentlemen of the jury, there is no evidence of wanton willful, or intentional injury on the part of the defendant's servant, Street, towards plaintiff; and if you believe the evidence in this case you must find for the defendant on the first and fifth counts of the complaint. * * * (5) The court charges the jury that there is no evidence of willful, wanton, or intentional injury on the part of Street and if they believe the evidence they must find for the defendant on the first and fifth counts. * * * (7) If the jury believe from the evidence that plaintiff's conduct proximately contributed to his own injury, then he cannot recover in this case, and your verdict must be for the defendant. * * * (9) If the jury believe from the evidence that the plaintiff could have performed his duties in unloading the car without being upon the running board of the trestle, where the car to be unloaded was being placed, and that he could have remained in a place of safety until the car was placed, then he contributed by his own negligence proximately to his injury, and he cannot recover. * * * (12) If the jury believe from the evidence that there was a safe way and an obviously dangerous way for the plaintiff to discharge the duties of his employment, and the plaintiff selected the obviously dangerous way of performing said duties, and he was thereby injured, I charge you that the plaintiff...