Woodward Iron Co. v. Herndon

• Decision Date: 02 February 1897
• Citation: 21 So. 430,114 Ala. 191
• Parties: WOODWARD IRON CO. v. HERNDON.
• Court: Alabama Supreme Court

21 So. 430

114 Ala. 191

WOODWARD IRON CO. v. HERNDON.

Supreme Court of Alabama

February 2, 1897

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by Thomas H. Herndon, as administrator of the estate of J. V Neal, deceased, against the Woodward Iron Company for the alleged negligent killing of his intestate. Judgment for plaintiff, and defendant appeals. Reversed.

This action was brought by the appellee, Thomas H. Herndon, as administrator of the estate of J. V. Neal, deceased, against the appellant, the Woodward Iron Company, and sought to recover damages for the alleged negligent killing of the plaintiff's intestate by the defendant. The complaint consisted originally of 22 counts, to which counts Nos. 23 24, and 25 were added by amendment. But on the final trial of the cause in said court in April, 1896, at the request of the defendant, the court gave the general charge in favor of the defendant, upon each of the counts numbered 2, 4, 6, 7, 8, 9 10, 11, 12, 13, 15, 16, 18, 19, 20, 21, and 22, and sustained demurrers to counts 5 and 14. Therefore none of the said counts or the pleading thereon is set out in this statement. The first count of the complaint was as follows: "First. The plaintiff, in his capacity as administrator of the estate of John V. Neal, deceased, claims of the defendant, a private corporation under the laws of Alabama, ($10,000) ten thousand dollars damages, and alleges that on the 11th day of January 1894, defendant was a corporation incorporated under the laws of Alabama, engaged in operating coal mines and a furnace for making pig iron, coke ovens for making coke, in said county and operating a railroad, running same from its furnace to its mines, and running thereon lever or hand cars, and also engines, cars, and trains, which cars and engines were propelled by steam on its railroad track from its said furnace to its said coal mines; and that on the date and year aforesaid the plaintiff's intestate was hired by, and was in the employ and service of, the defendant as section foreman to work on said railroad and said railroad tracks; and that on one side of said track between said furnace and coal mine, and within a few feet of the said railroad track, there was then a continuous line of coke ovens extending for about 250 yards, then and there being operated by defendant; and that the smoke from said coke ovens, when it was being blown by the wind towards, on, or over said railroad track, was so dense that one on said railroad track and opposite to said ovens could not see a car, engine, or train of cars approaching him on said track in time to avoid being injured by the same; and plaintiff says that on the day aforesaid, and while his intestate was employed as aforesaid, and was discharging the duties required of him in said employment, it became and was necessary for him, in performing his duties, to go on a hand car on said railroad track with other employés of the defendant, from defendant's said coal mines to defendant's said furnace, and while plaintiff's intestate and other employés were on said hand car, and it was on said railroad track and passing by and opposite to said coke ovens, and when smoke from said coke ovens was being blown by the wind towards, on, and over said railroad track, and said smoke was so dense than an engine or train of cars approaching them could not be seen by them in time for them to avoid being injured by the same, an engine and train of cars of defendant, propelled by steam on said railroad track, and coming from the opposite direction from that in which the plaintiff's intestate was going with said hand car, and without any signal of its approach being given, by ringing the bell or blowing the whistle or otherwise, struck said hand car with great force and violence, and thereby killed plaintiff's intestate. The plaintiff avers that the collision of said hand car with said train and said death was caused by the negligence of the person in charge of the engine which was propelling said train, which collided with the hand car upon which the plaintiff's intestate was riding, in this: that the person so in charge of said engine had reason to believe that said hand car upon which plaintiff's intestate was riding was likely to be moving in said smoke in the direction it was at the time it was on said track, and said person so in charge of said engine negligently failed to ring the bell on said engine or blow the whistle, or give any other signals of his approach, when entering the smoke which covered the track as aforesaid. And the plaintiff avers that the person so in charge of said engine was also in the service and employment of the defendant, and was at the time of the accident and injuries aforesaid in the discharge of his duty under such employment, in operating and controlling said engine."

In the remaining counts the prefatory averments as to the circumstances of the accident were substantially the same as those contained in the first. And the averments of negligence in each of said counts were as follows: Third count: "And the plaintiff avers that the collision of said hand or lever car with said train was caused by the negligence of the person who was in charge of and operating said engine on defendant's said road, which collided with the said hand or lever car upon which plaintiff's intestate was riding, in this: that said person so in charge of said engine, negligently running said engine without due care into and through said smoke, and into and against the lever or hand car upon which plaintiff's intestate was then riding, and the death of plaintiff's intestate was the result of said negligence of said person so in charge of said engine." Seventeenth count: "And the plaintiff avers that the said intestate's death was caused by the negligence of a person who was also in the employment of the said defendant, and to whom the defendant had intrusted the superintendence of operating, running, and controlling this plant, viz. its iron furnace, its coke ovens, its ore and coal mines, and in operating and running the railroad trains passing from its furnace to its ore and coal mines, and of the operatives who had charge of said trains, in this: that said person who had such superintendence intrusted to him, well knowing that the smoke from said coke ovens would at time obscure the railroad track as aforesaid, negligently allowed or permitted the said persons or operatives running the trains of said defendant from its furnace to its mines and from its mines to its furnace to run into and through said smoke or onto the said track where the smoke obscured the same, without giving proper signals or taking other necessary means of precautions to ascertain whether the said track was occupied by other persons in the employment of said defendant, and whether other trains or cars or hand cars were upon said track; and plaintiff avers that said person having the superintendence intrusted to him as aforesaid was guilty of aforesaid negligence whilst in the exercise of said superintendence, and by reason of aforesaid negligence plaintiff's intestate was killed, for which plaintiff claims damage as aforesaid." Twenty-third count: "And the plaintiff avers that the collision of said engine and train with said hand car, and the death of his intestate, were caused by the negligence of the engineer in charge and control of said engine, in this, to wit, said engineer negligently ran said engine and train on said railroad track along, opposite, and by said coke ovens, and through said smoke, without giving proper signals or warning while passing through said smoke of said engine and train; and the plaintiff avers that the said engineer was then and there in the employment of the said defendant, and in charge and control of said engine." Twenty-fourth count: "And the plaintiff avers that, at the time the engineer in charge of said engine ran said engine and train into and through said smoke as aforesaid, he knew that said railroad track was obscured by smoke as aforesaid, and that a rule, regulation, or custom then and there existed which required all engineers of defendant, running an engine or engine and train on said railroad track, along, opposite, and by said coke ovens, when said railroad track was obscured by smoke as aforesaid, to blow a whistle before entering said smoke, and continue to blow the same at short intervals while passing through said smoke. And the plaintiff says that the engineer in charge and control of said engine, disregarding his duty in this behalf, failed to blow the whistle at short intervals while passing along opposite and by said coke ovens, and through said smoke, and said collision of said engine and train and said hand car, and the death of the plaintiff's said intestate, were caused by the said negligence of the said engineer by failing to blow said whistle at short intervals as aforesaid, and that said engineer was then and there in the employment of the defendant, and had charge and control of said engine." Twenty-fifth count: "The twenty-fifth count is identical in all respects with the twenty-fourth count."

To the above counts of the complaint the defendant demurred. To the first count the grounds of demurrer were as follows: (1) Because the allegation in that part of the first count charging negligence was that the engineer in charge of the engine had reason to believe that the hand car was liable to be moving in the direction it was and at the time it was on said track, and that he negligently failed to ring the bell of the engine or blow the whistle. It fails to aver that the engineer had reason to believe that the hand car would be at that time and place on said track and in said smoke. (2) Because the first count did...