Western Ry. of Alabama v. Russell

Decision Date30 June 1905
Citation39 So. 311,144 Ala. 142
CourtAlabama Supreme Court

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by Annie Russell, as administratrix of Thomas J. Russell deceased, against the Western Railway of Alabama. From a judgment for plaintiff, defendant appeals. Affirmed.

George P. Harrison, for appellant.

Crum &amp Weil and J. M. Chilton, for appellee.


This action is by the personal representative of Thomas J Russell, deceased, to recover damages for alleged negligence on the part of defendant resulting in his death. The complaint as originally filed comprised six counts, and nine others were added by amendment. Counts 8 and 10 were withdrawn, and the trial was had on the remaining counts. To each count a demurrer was interposed, which was overruled by the trial court. These several rulings are assigned as error. There is, however, no such insistence in brief of appellant's counsel on these assignments of error as devolves upon us the duty of passing upon them. All that is said is that they are insisted on, and we are referred to the assignments of error, and the demurrers as set forth in the record. This amounts to no insistence. Williams v. Spragins, 102 Ala. 424, 431, 15 So. 247; Ward v. Hood, 124 Ala. 574, 27 So. 245, 82 Am. St. Rep. 205; Syllacauga Land Co. v. Hendrix, 103 Ala. 254, 15 So. 594; 2 Mayfield's Dig. p. 133, § 77 et seq.

We have, however, examined each count of the complaint upon which the case was tried, and find that each states a cause of action. In some of the counts the negligence is alleged in general terms to have consisted in the failure to maintain the track in proper condition for the passage of trains; in others, that the culvert was defectively constructed; in others, the defect in the construction of the culvert is stated more specifically to have consisted in the fact that it was too small to carry off the water that would accumulate during heavy rains; and in others, that the materials of which the culvert was constructed had become weakened by decay. There were also two counts (seventh and eighth) predicated on the alleged failure of the servants of defendant to give warning to plaintiff's intestate of the conditions as they existed at the time of the disaster.

The defendant filed originally 12 pleas, and a like number were added by amendment. Of these, plea 1 was the general issue, and 2, 3, 4, 5, 13, 14, 15, and 16, to which demurrers were sustained, set up in different forms that the washing away of the culvert and the death of Russell resulted from a rainfall so severe and unexampled in character as to amount to the "act of God." Without considering the various grounds of demurrer interposed to each of these pleas, suffice it to say that, if they presented a defense to the action and, therefore, the court erred in sustaining the demurrer, the defendant could have had the benefit of each of them under the plea of the general issue. The rulings must therefore be regarded as innocuous. Louisville & N. R. Co. v. Hall, 131 Ala. 161, 32 So. 603. But, aside from this, they were clearly no answer to the seventh count.

Pleas 7, 8, 9, 11, 21, 22, and 23 invoke either the defense of contributory negligence, or that plaintiff's intestate assumed the risk of the injury which caused his death. Plea 7 is as follows: "That before plaintiff's intestate sustained the injury complained of as alleged in said complaint, and while in charge of said train, he was notified by defendant that there had been heavy rains along the line of defendant's railway, and was cautioned to look out for high water at all low places and waterways; that notwithstanding said notification and caution, and in disregard thereof, the said intestate so carelessly and negligently operated said engine and train as to run into a washout, which could have been avoided by the use of reasonable care and diligence. Wherefore defendant avers the injury complained of was the result of the careless and negligent conduct of plaintiff's intestate in disregard of such notice and caution in operating said engine and train, thereby contributing to his own injury, and that such careless and negligent conduct was the proximate cause of the injury complained of."

Speaking of the duties railway companies owe their employés operating their trains, we said, in Northern Ala. Ry. Co. v. Shea, 37 So. 796: "Trainmen do not assume the risk of defective track conditions. They have a right to assume that the track is safe. It is not their duty, but the duty of their employers, to keep it in proper condition. The acquaintance which trainmen are required to have with the premises, and to acquire which they are carried over the road on trains before being put in charge of trains, is more an acquaintance with the line, so to say, than with the track. They must know, and in the way indicated they are taught, the conditions of the line in respect of stations, stopping places, switches, grades, curves, and distances. With these things they have to do; but not with the track itself in respect of its condition and maintenance. This plaintiff, a brakeman, was not charged with knowledge of the defects in this track, but, on the contrary, had a right to assume without investigation that the track was in good and safe condition." The same principle was also declared in L. & N. R. R. Co. v. Baker, 106 Ala. 624, 17 So. 452; Union Pac. Ry. Co. v. O'Brien, 161 U.S. 457, 16 S.Ct. 618, 40 L.Ed. 766. For a failure to discharge these duties, the defendant could not relieve itself by any such general notification or caution as is alleged in the plea. In Dresser on Employer's Liability Act, § 99, it is said: "The master does not discharge the duty cast upon him by giving a general warning of danger, but he is bound so to point out and instruct about the risk that the servant may appreciate what he is to encounter, and know how he may avoid it. Mere information in advance that the service generally, or a particular thing connected with it, was dangerous, might give him no adequate notice or understanding of the kind and degree of danger which would necessarily attend the actual performance of his work." It is true the statement quoted relates to the duty imposed upon the master to give warning of latent dangers or to inexperienced servants in respect to the appliances with which they have to do. But certainly the duty of the employer would not be less in respect to trainmen who had no duties to perform regarding the proper maintenance of the track. It is not alleged that the engineer was informed of the dangerous conditions existing at the culvert, or that, had he kept a lookout, he could have ascertained those conditions in time to have averted the injury. The averment that he so carelessly and negligently operated his engine and train as to run into a washout, which could have been avoided by the use of ordinary care and diligence, is the mere statement of the conclusion of the pleader, and is not permissible in pleading contributory negligence, where the facts must be averred. S. R. Co. v. Shelton, 136 Ala. 191, 34 So. 194; Railroad Co. v. Herndon, 100 Ala. 451, 14 So. 287; L. & N. R. R. Co. v. Markee, 103 Ala. 160, 15 So. 511, 49 Am. St. Rep. 21. The court did not err in sustaining the demurrer.

Plea 8 was substantially the same as 7, with the added averment "that notwithstanding said notification and caution, and in disregard thereof, the said intestate carelessly and negligently ran his said train at a rapid rate of speed without ascertaining the condition of the road ahead of him, which he could have done by the use of proper care and diligence," etc. It will be seen that the plea is open to the same criticism as the seventh. It was not the duty of the engineer,...

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