Williams v. South & N.A.R. Co.

• Decision Date: 12 February 1891
• Citation: 91 Ala. 635,9 So. 77
• Court: Alabama Supreme Court
• Parties: WILLIAMS v. SOUTH & N. A. R. CO.

9 So. 77

91 Ala. 635

WILLIAMS v. SOUTH & N. A. R. CO.

Supreme Court of Alabama

February 12, 1891

Appeal from circuit court, Chilton county; JAMES R. DOWDELL, Judge.

Action by Thomas H. Williams against the South & North Alabama Railroad Company to recover damages for the death of his minor son, alleged to have been caused by the negligence of defendant. Defendant pleaded the general issue, and contributory negligence on the part of deceased. The evidence tends to show that deceased was about 19 years old, but there was some conflict as to his exact age; that while his father was away from home he went to defendant and sought employment, and was soon afterward seen on one of defendant's trains in the capacity of brakeman; that on his first trip, when his train arrived at Calera, having started from Montgomery, he was ordered to get on one of the freight-cars, which was to be placed upon a side track, and to stop it when it arrived at the place designated. This car was to be placed on the side track by means of what is known as a "running switch" or "kicking switch." This was done by the car being placed next to the tender, the coupling-pin was withdrawn, the engine put in backward motion, and, when the car had received sufficient momentum to carry it to the proper place, the engine was reversed, which caused, it to gradually slacken its speed finally stop, and then to move immediately forward in the opposite direction. When the car commenced to separate from the engine, the plaintiff's son left the brake, ran across the car, and jumped in the direction of the tender which he failed to strike, and fell upon the track immediately in front of the tender, and one of the trucks ran over his legs. The engine then stopped, and at once moved forward in the opposite direction, running over him again and inflicting injuries of which he died. Defendant, after showing that the witnesses examined were experienced railroad men, asked them "if the kicking switch, as herein described, was a switch that was usually and commonly made on railroads generally." Plaintiff objected to this question, but the court overruled the objection, and allowed the witness to answer in the affirmative. There was judgment for defendant, and plaintiff appeals.

W S. Thorington and W. A. Collier, for appellant.

Jones & Falkner, for appellee.

COLEMAN J.

The liability of the defendant for the wrongful injury or death of one of its employes, caused by the wrongful act of a co-employe, results solely from statutory enactments. The cases in which a recovery may be maintained are stated under section 2590 of the Code. When death results from such causes as fix a liability upon the employer, the statute provides that the personal representatives of the deceased may sue, and the amount recovered "shall be distributed according to the statute of distributions." It will be seen, by a reference to the statute, that the right of action in such cases is given only to the personal representative. The second, third, fourth, and fifth counts of the complaint do not negative that the employment was with the father's consent, and these counts are evidently founded upon the supposed liability of the defendant under the employers' act. The father cannot maintain the action to recovery under the employers' act. Lovell v. Coal Co., (Ala) 7 South. Rep. 757; Stewart v. Railroad Co., 83 Ala. 493, 4 South. Rep. 373. As he cannot recover on these counts under any state of the evidence, there was no error in giving the general charge in favor of the defendant of which plaintiff can complain, so far as it denied his recovery of these counts.

The plaintiff asked the court to charge the jury that "although the jury should believe from the evidence that the deceased was guilty of negligence in jumping from the car to the engine, and thereby placed himself in peril, yet if they further believe that, after he was in peril, the engineer knew, or might have known, by the exercise of due care or diligence, that Williams was in such condition of peril, and could have then, by the exercise of due care, prevented the injury which caused Williams' death, and failed to do so, then the defendant, if the jury believe the other evidence, is liable in this action." The correctness of the principle of law asserted in this charge has been too often recognized by this court to require further consideration. A principle of law, however, may be correct as an abstract proposition, and yet not applicable in all cases. The bill of exceptions states that the evidence was in conflict as to whether decedent was over or under 21 years of age. The charge should have been predicated on the further finding of the jury that decedent was a minor, for, unless the jury found that decedent was a minor, the father was not authorized to maintain the acton, under any count in the complaint. The charge was objectionable, also, for the further reason that it authorized a recovery upon the counts under which the facts averred showed that the personal representative alone was entitled to recover.

At the request of the defendant, the court gave the general charge "that, if the jury believe the evidence, to find for the defendant." The correctness of this charge involves the inquiry whether any count of the complaint, if sustained by proof, entitled plaintiff to recover, and, if so, was there any evidence before the jury which tended to sustain such count of the complaint. Code, § 2588, provides as follows "When the death of a minor child is caused by the wrongful act r omission or negligence of any person or persons or corporation, his or their servants or agents, the father may sue and recover such damages as the jury may assess," etc. The principle of law which subjects a defendant to damages for the death of a minor child at the suit of the father, as provided in this section, rests upon a different foundation altogether from that declared under the employers' act. If the father expressly or impliedly consent that his minor child enter the employment of another, and he is injured by the negligence of a co-employe, he thereby subjects himself to the limitations and privileges in the employers' act, which prescribes the condition upon which a recovery may be had for an injury caused by the wrong or negligence of a co-employe. Where, however, a minor child is employed without the...