Woodward Iron Co. v. Andrews

• Decision Date: 02 February 1897
• Citation: 21 So. 440,114 Ala. 243
• Parties: WOODWARD IRON CO. v. ANDREWS.
• Court: Alabama Supreme Court

21 So. 440

114 Ala. 243

WOODWARD IRON CO. v. ANDREWS.

Supreme Court of Alabama

February 2, 1897

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by James Andrews against the Woodward Iron Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought by the appellee, James Andrews, against the appellant, the Woodward Iron Company, to recover damages for personal injuries, alleged to have been caused by reason of the defendant's negligence. The complaint contained seven counts. The first count of the complaint alleges the corporate character and business of appellant, and that appellee was in its employment as a track hand on its railroad, in discharging the duties of his said employment on the 11th day of January, 1894, when he was injured; that on each side of appellant's railroad track, and within a few feet of said railroad track, there was then and there a continuous line of coke ovens, between 150 and 250 yards long, operated by appellant; that the smoke from said ovens when it was being blown by the wind towards said track, was so dense that one on said track and opposite to said ovens could not see an engine, car, or train of cars approaching him on said track from the opposite direction, in time to avoid being injured by the same; that on the day and year aforesaid, while appellee was employed by appellant as aforesaid, and was discharging the duties required of him in said employment, it became and was necessary for him, in discharging the duties of said employment, to go on a hand car, with other employés of appellant, on said railroad track, from appellant's coal mine to its furnaces; and that while he was on said hand car, and was passing by and opposite to said coke ovens, and the smoke was being blown by the wind towards said track, and was so dense that an engine and train of cars approaching them from the opposite direction could not be seen by them in time for them to avoid being injured by the same, an engine and train of cars of appellant, propelled by steam, and coming from the opposite direction, without any signal of its approach being given by ringing the bell, blowing the whistle, or otherwise, struck said hand car with great force and violence, and thereby injured appellee, to his damages, etc. In this count it is alleged that appellee's said injuries were caused by the negligence of the engineer in charge of said engine, in running said engine and train along and opposite to said coke ovens and through said smoke, without giving any signals of its approach by ringing the bell or blowing the whistle or otherwise, and that said engineer was then and there in the employment of the appellant, and had charge of said engine. The second count of the complaint is like the first, except that it alleges that, at the time of the injuries, the hand car, appellee, and other employés were under the superintendence of one J. V. Neal, who was in the service of appellant, and intrusted by it with such superintendence, and was in the exercise of such superintendence; and that the injuries were caused by the negligence of said Neal in causing said hand car to be run on said track opposite to said ovens, and into said smoke, without stopping to look and without taking any precaution whatever, to ascertain whether or not an engine or train of cars was approaching from the opposite direction. The third count is like the second, except that it alleges that at the time of the injuries the hand car, appellee, and other employés were in charge of and under the control of one Neal, etc., and that the injuries were caused by his negligence, in causing said hand car to be run on said track, opposite to said ovens, and into said smoke, without stopping, etc. The fourth count is like the first, except it alleges that the injuries were caused by the negligence of persons in charge of said engine and train, etc., in running the same backward on said track opposite to said ovens, and through said smoke, without giving any signal, etc. The fifth count is like the third except that it alleges that the injuries were caused by the wantonness and negligence of said Neal, who had charge and control, etc. The sixth count is like the third, except that it alleges that at the time the injuries were received, appellee and the other employés were under the orders and direction of said Neal, etc., and that the injuries resulted from appellee's having conformed to his orders, etc. The seventh count is like the first, except that it alleges that the injuries were caused by the wanton negligence of the engineer in charge of said engine, etc. Appellant demurred separately to the seventh count, and to the fifth count of the complaint, and its demurrers were overruled. The defendant pleaded the general issue and several special pleas, in which it set up the defense of contributory negligence on the part of the plaintiff, in that he remained on the hand car after the danger and peril were imminent, and thereby voluntarily submitted himself to such danger. The special pleas to this count alleged in addition to setting up contributory negligence, as stated above, that a reasonable and prudent man would not have remained on the car without a flagman being sent ahead. To each of these pleas the plaintiff demurred, which demurrer was sustained, except as to the pleas to the sixth count. Thereupon the defendant amended each of its pleas by inserting therein the averment "that the danger was so great that a man of ordinary prudence would not have incurred it," and the demurrer to said pleas, as amended, was overruled. Issue was joined on the general issue and said special pleas.

The testimony for appellee shows that on the 11th of January, 1894, he was in the employment of appellant as a track hand on its railroad, and that, in discharge of the duties of his employment, he was coming with other hands, in charge of and under the orders and superintendence of J. V. Neal, who was in the employment of appellant, on a hand car of appellant, and on its railroad track from Dolomite to appellant's furnace; that near the furnace there was a line of coke ovens, along its side of the railroad track, and not more than 3 or 4 yards from it, and about 100 or 150 yards long; that the smoke from the ovens was being blown by the wind across the railroad track, and was so dense that one could not see through it; that the hand car was running rapidly,-faster than a man could run,-and, when it got about half-way between the upper and lower end of the coke ovens, it was struck with great force and violence by a car of appellant being propelled ahead of a locomotive engine; that, on account of the density of the smoke, plaintiff did not see the car or engine till it was right at him, and he could not do anything before he was struck senseless; and that he did not hear any bell ring, or whistle blow, or the engine; and that, out of the five men on the hand car, only two escaped with their lives. The evidence for the defendant tended to show that Ritchie, who was the engineer of the train that struck the hand car, blew his whistle as he entered the cloud of smoke which hovered over the track, and just as he was emerging therefrom. The evidence was conflicting as to whether it was the custom of the foreman of the squad of which the defendant's witness was one to take precautions against engines and trains coming through the smoke, in an opposite direction, by sending flagmen ahead. During the examination of one Donohoo as a witness, and after he had stated that he heard Ritchie, the engineer, blowing the whistle just before the accident complained of occurred, he said that he and one Woodward, who was in the employ of the defendant, were standing together, and commenced upon the blowing of the whistle by Ritchie, and thereupon the witness was asked by the defendant "what Woodward said to him about Ritchie blowing the whistle." The plaintiff objected to this question; the court sustained the objection; and the defendant duly excepted. The other facts of the case are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give the general affirmative charge in its behalf, upon each of the counts. The court gave the general affirmative charge as to the fifth and seventh counts of the complaint, and refused to give it as to the other counts; and to the refusal to give each of...