Western Ry. of Alabama v. Arnett
Court | Supreme Court of Alabama |
Citation | 34 So. 997,137 Ala. 414 |
Parties | WESTERN RY. OF ALABAMA v. ARNETT. [a1] |
Decision Date | 14 April 1903 |
Appeal from City Court of Montgomery; A. D. Sayre, Judge.
Action by William T. Arnett against the Western Railway of Alabama. From a judgment in favor of plaintiff, defendant appeals. Reversed.
The first count charges that while plaintiff was riding on a hand car and supporting himself by holding to a certain brace thereon one of the other section hands on said car, acting under instructions and direction of the foreman, negligently and without warning to the plaintiff, applied the brakes to the wheels of the said car, thereby suddenly checking the speed, by reason of which plaintiff's weight and body was thrown violently against said brace, causing said brace to turn, give way, or break, thereby precipitating plaintiff violently to the ground in front of said car, when said car then and there ran over plaintiff, etc.
The second count charges negligence of one S. I. Golden, section foreman, having superintendence and control of said car and the section hands thereon, in causing the speed of said car to be suddenly checked without warning to plaintiff, thereby causing plaintiff to fall and receive the injuries complained of.
The third count charges that the injury complained of was caused by reason of defects in the condition of said lever car on which plaintiff was riding, in that a certain brace or beam which had been used in supporting what is called a "running board" on said car, was insecurely fastened to said car, and by reason thereof said brace gave way, broke or turned, thereby precipitating plaintiff to the ground, from which he sustained the injuries complained of.
The fourth count charges negligence in general on the part of said Golden in operating, or causing to be operated, said car, without specifying any particular act of negligence.
The defendant demurred to each of the counts of the complaint which demurrer was overruled, but under the opinion it is unnecessary to set out these grounds of demurrer; the ruling of the court not being insisted upon in argument.
The defendant pleaded the general issue and several special pleas, setting up contributory negligence of the plaintiff and other defenses. Among the pleas setting up contributory negligence were the following: "(8) For further answer to the third count of the complaint the defendant says that plaintiff had knowledge that the brace or beam therein referred to was insecurely fastened to said car, and with this knowledge he rode upon said hand car and assisted in propelling the same." "(14) And for further answer to the complaint and each count thereof separately, defendant says that plaintiff caused or proximately contributed to the injury complained of, in this: that while he was standing on the front end of said car, with his back in the direction in which said car was moving, said car was running at the rate of four or five miles an hour, and, while he was holding onto a lever and assisting in propelling said car, he released his hold upon the same, and stooped or squatted down and took hold of a certain beam or brace on said car, which he knew or by proper diligence could have known was loose, or insecurely fastened, and by reason of said defection in said brace or beam plaintiff fell or was thrown from the car and received the injuries complained of."
The fourth and fifth pleas were as follows: Then follows a written instrument signed by plaintiff, which is a release and discharge in full of defendant for damages resulting from said injury; the consideration expressed being the payment to plaintiff of $25, the receipt of which is acknowledged.
The plaintiff demurred to each of the special pleas. The demurrers to the second, third and eighth pleas were sustained. The ground of demurrer to the eighth plea was as follows:
The assignment of error based on the ruling of the court in sustaining the demurrers to pleas 2, 3 and 8 was as follows "The court erred in sustaining plaintiff's demurrers to defendant's pleas numbered 2, 3 and 8."
The seventh and ninth pleas were stricken on motion of the plaintiff, but under the opinion it is unnecessary to set out at length these pleas or the motion.
To the fourteenth plea the plaintiff demurred upon the following grounds:
The demurrer to the fourteenth plea was sustained. The demurrers to the pleas other than those just above referred to were overruled.
To the fourth and fifth pleas the plaintiff filed a general replication, taking issue thereon, and also the following special replications:
To this replication the defendant demurred upon the following grounds:
The defendant filed the following rejoinder to the plaintiff's special replication to pleas 4 and 5 "Comes the defendant and for rejoinder to plaintiff's replication to pleas Nos. 4 and 5 says that plaintiff was a man of intelligence and education, and could read and write and was fully capable of making a contract rationally, and that while in this condition he received the payment referred to in defendant's pleas Nos. 4 and 5 and executed the release set out in plea 5, and at the time he received it he either knew or ought to have known the contents of the said release set forth in defendant's plea No. 5, and defendant avers that...
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