Western Ry. of Alabama v. Mays, 3 Div. 235

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
PartiesWESTERN RY. OF ALABAMA v. MAYS.
Decision Date30 June 1916
Docket Number3 Div. 235

72 So. 641

197 Ala. 367

WESTERN RY. OF ALABAMA
v.
MAYS.

3 Div. 235

Supreme Court of Alabama

June 30, 1916


Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Action by Tom Mays against the Western Railway of Alabama, for injuries received while in its employment. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Act of April 18, 1911. Affirmed.

The fifth count states the relation as that of employer and employé, that the train on which plaintiff was an employé was engaged in interstate commerce between the states of Alabama and Georgia, and that, while engaged in its employment in such commerce, and while removing, or assisting to remove, a barrel of oil from a railroad car upon a railroad track at or near Burkville in Lowndes county, Ala., said barrel of oil struck or ran upon plaintiff, and by reason thereof and as a proximate result plaintiff was injured. Practically the same allegations were made in the seventh court. The allegation of negligence sufficiently appears form the opinion, as do the other facts.

The following charges were refused to defendant:

(16) If you believe from the evidence in this case that plaintiff was warned before undertaking to unload the barrel of oil and there was danger of his not being able to do so and that he was requested to wait until help could be gotten to assist him, but that notwithstanding the request, he voluntarily undertook to assist in unloading the same before further assistance could be gotten, and his so doing proximately caused the injury complained of, then defendant was not liable to him, and your verdict should be for defendant
(17) Plaintiff was not bound to obey or conform to any order given him if he knew that obeying them would probably cause damage to him; and, if you believe from the evidence that he undertook to assist in unloading a barrel of oil upon being told so to do, when he knew that injury would probably result to him in so doing, and as a proximate result of his undertaking did receive the injuries complained of, then I charge you that defendant is not liable to him, and your verdict should be for defendant
(19) If you believe from the evidence that the plaintiff, before undertaking to unload the barrel of oil, was warned that possibly he might not be able to do so, and that he had better wait until assistance could be gotten, notwithstanding the same he voluntarily undertook to assist in unloading the barrel of oil, and that as a proximate consequence thereof it fell on him and injured him as complained of, then I charge you that your verdict should be for defendant.

Steiner, Crum & Weil, of Montgomery, for appellant.

W.E. Andrews and Hill, Hill, Whiting & Stern, all of Montgomery, for appellee.

THOMAS, J.

This action is by Tom Mays, appellee, against the Western Railway of Alabama, appellant, for personal injuries sustained by plaintiff, as a brakeman of the defendant, while unloading a barrel of oil from one of defendant's cars. The case was submitted on counts 5 and 7, which counts are sufficient under the federal Employer's Liability Act. The allegation of negligence in count 5, following the recital of the circumstances of the injury complained of, was that:

"One Williamson, an officer, agent or employé of said defendant, while acting within the line or scope of his employment *** negligently pushed or shoved said barrel of oil from said railroad car, upon or against plaintiff as aforesaid."

The like allegation in count 7 is that:

"Said Williamson, *** while removing said barrel of oil from said railroad car, negligently suffered or permitted said barrel of oil to strike or run upon or against plaintiff."

That negligence may be averred in a very general way, and that the quo modo of the negligence need not be defined, is settled by this court. T.C., I & R.R. Co. v. Smith, 171 Ala. 251, 55 So. 170; B.R., L. & P. Co. v. Selhorst, 165 Ala. 475, 51 So. 568; So. Ry. Co. v. Crawford, 164 Ala. 178, 51 So. 340; L. & N.R.R. Co. v. Marbury, 125 Ala. 237, 28 So. 438, 50 L.R.A. 620; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 So. 349; L. & N.R.R. Co. v. Church, 155 Ala. 329, 46 So. 457, 130 Am.St.Rep. 29; T.C., I. & R.R. Co. v. Moore, 69 So. 540.

In Wes. Ry. of Ala. v. Foshee, 183 Ala. 182, 62 So. 500, it was held that an averment that the defendant was guilty of negligence in and about carrying plaintiff as its passenger, in connection with a statement of the relation between the parties, was sufficient.

The count in Woodward I. Co. v. Marbut, 183 Ala. 310, 62 So. 804, concludes with the averment that "said injury and damage were caused by reason and as a proximate proximate consequence of the negligence of a person in the service and employment of defendant, and intrusted by it with superintendence, whilst in the exercise of such superintendence, to wit, Tom Cosper," and the failure to point out even in general terms any act of negligence on the part of the alleged superintendent, with respect to his duties while so engaged, was held a ground for demurrer. Here, the fifth count avers the negligence of Williamson, the agent of defendant, while acting in the line and scope of his employment, in that he "negligently pushed or shoved said barrel of oil from said railroad car upon or against plaintiff as aforesaid." This was sufficient. T.C., I. & R.R. Co. v. Moore, supra.

The court did not err in overruling defendant's demurrer to counts 5 and 7.

The third, fourth,...

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21 practice notes
  • Mississippi Cent R. Co. v. Knight, 24615
    • United States
    • Mississippi Supreme Court
    • March 30, 1925
    ...Western Ry. Co., [138 Miss. 624] 162 F. 775; United States v. Northern Pac. Terminal B. Co., 144 F. 861; Western Ry. of Alabama v. Mays, 72 So. 641; Devine v. Chicago & C. River R. Co., 257 Ill. 449, 102 N.E. 803; Ross v. Sheldon, 176 Iowa 618, 154 N.W. 499; Louisiana Ry. & Nav. Co. v. Holl......
  • Crim v. Louisville & N.R. Co., 5 Div. 745
    • United States
    • Supreme Court of Alabama
    • January 13, 1921
    ...A.Ry. Co. v. Campbell, 203 Ala. 296, 82 So. 546; Birmingham So.R. Co. v. Harrison, 203 Ala. 284, 82 So. 534; Western Ry. of Ala. v. Mays, 197 Ala. 367, 72 So. 641; L. & N.R.R. Co. v. Jenkins, 196 Ala. 136, 72 So. 68; Crandell-Pettee Co. v. Jebeles & Colias Conf. Co., 195 Ala. 152, 69 So. 96......
  • McMillan v. Aiken, 1 Div. 127
    • United States
    • Supreme Court of Alabama
    • November 18, 1920
    ...Campbell, 203 Ala. 296, 82 So. 546, 549; Birmingham Sou. R. Co. v. Harrison, 203 Ala. 284, 82 So. 534, 539; Western Ry. of Ala. v. Mays, 197 Ala. 367, 72 So. 641; L. & N.R.R. Co. v. Jenkins, 196 Ala. 136, 72 So. 68; Crandall-Pettee Co. v. Jebeles & Colias Conf. Co., 195 Ala. 152, 69 So. 964......
  • Dement v. Summer, 32072
    • United States
    • United States State Supreme Court of Mississippi
    • February 10, 1936
    ...County Drug Co. v. Howard, 256 S.W. 705; Peitzuk v. Kansas City Ry. Co., 232 S.W. 989; Western Railroad of Alabama v. Mays, 72 So. 461, 197 Ala. 367; American Ry. Express Co. v. Truede, 246 S.W. 1089; Black v. Wilson, 187 S.W. 493; Fitzsimmons v. Missouri Pacific R. R. Co., 242 S.W. 915; Pi......
  • Request a trial to view additional results
21 cases
  • Mississippi Cent R. Co. v. Knight, 24615
    • United States
    • Mississippi Supreme Court
    • March 30, 1925
    ...Western Ry. Co., [138 Miss. 624] 162 F. 775; United States v. Northern Pac. Terminal B. Co., 144 F. 861; Western Ry. of Alabama v. Mays, 72 So. 641; Devine v. Chicago & C. River R. Co., 257 Ill. 449, 102 N.E. 803; Ross v. Sheldon, 176 Iowa 618, 154 N.W. 499; Louisiana Ry. & Nav. Co. v. Holl......
  • Crim v. Louisville & N.R. Co., 5 Div. 745
    • United States
    • Supreme Court of Alabama
    • January 13, 1921
    ...A.Ry. Co. v. Campbell, 203 Ala. 296, 82 So. 546; Birmingham So.R. Co. v. Harrison, 203 Ala. 284, 82 So. 534; Western Ry. of Ala. v. Mays, 197 Ala. 367, 72 So. 641; L. & N.R.R. Co. v. Jenkins, 196 Ala. 136, 72 So. 68; Crandell-Pettee Co. v. Jebeles & Colias Conf. Co., 195 Ala. 152, 69 So. 96......
  • McMillan v. Aiken, 1 Div. 127
    • United States
    • Supreme Court of Alabama
    • November 18, 1920
    ...Campbell, 203 Ala. 296, 82 So. 546, 549; Birmingham Sou. R. Co. v. Harrison, 203 Ala. 284, 82 So. 534, 539; Western Ry. of Ala. v. Mays, 197 Ala. 367, 72 So. 641; L. & N.R.R. Co. v. Jenkins, 196 Ala. 136, 72 So. 68; Crandall-Pettee Co. v. Jebeles & Colias Conf. Co., 195 Ala. 152, 69 So. 964......
  • Dement v. Summer, 32072
    • United States
    • United States State Supreme Court of Mississippi
    • February 10, 1936
    ...County Drug Co. v. Howard, 256 S.W. 705; Peitzuk v. Kansas City Ry. Co., 232 S.W. 989; Western Railroad of Alabama v. Mays, 72 So. 461, 197 Ala. 367; American Ry. Express Co. v. Truede, 246 S.W. 1089; Black v. Wilson, 187 S.W. 493; Fitzsimmons v. Missouri Pacific R. R. Co., 242 S.W. 915; Pi......
  • Request a trial to view additional results

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