Appeal
from circuit court, Blount county; J. A. Bilbro, Judge.
Action
by Oscar Goforth, pro ami, against J. W. Worthington & Co.
Judgment for plaintiff, and defendants appeal. Reversed.
The
complaint contained three counts. The first count of the
complaint was as follows: "The plaintiff, who is a minor
of the age, to wit, of about 16 years, claims of the
defendants the sum of $10,000 as damages, for that
heretofore, on, to wit, the 20th day of March, 1896, the
defendants were engaged in the business of mining and washing
ore at Champion, Blount county, Ala., and, in connection
therewith, were running, managing, and operating in and about
and near said ore mines a railway, together with tracks and
switches thereof, and cars and a steam locomotive engine or
engines thereon. And plaintiff says that on said day he was
in the service and employment of the defendants, and then and
there the duty was required of the plaintiff in said service
and employment to catch upon and climb cars loaded with iron
ore, while in motion, with a locomotive steam engine attached
thereto and moving them, and ascend the said cars and put on
brakes. And plaintiff further says that, while engaged in or
about said duty, he was thrown from the car upon which he
caught, and was run against or upon and dragged by the car
and was so crushed and bruised and wounded in various parts
of his body as to be permanently injured; that he was caught
by the grease box of the car, and was twisted and dragged
over the ends of the cross-ties, and his back, shoulder, and
breech crushed, his ribs broken, and his thigh bone broken or
fractured, and he was crushed, bruised, and hurt inwardly
and his ability to work and labor was greatly and permanently
impaired and lessened, by reason of all of which plaintiff
suffered and continues to suffer great pain of body and mind
and loss of time, and has been and will be put to great
expense for medicine and medical attention, care, and
nursing, and has been greatly and permanently disfigured, and
incapacitated to do and perform ordinary labor. The plaintiff
avers that his said injuries were caused by reason of defects
in the condition of the ways, works, or machinery used in or
connected with the said business of defendants, which defects
were as follows, to wit: The means and appliances for
stopping the locomotive engine to which said car was attached
were defective, or the means and appliances for stopping or
putting on brakes on said cars were defective, or the said
track or switch at or near the place of said injury was
defective, or the means and appliances for ascending said car
to put on brakes were defective, or the hand hold for
catching upon said car against which plaintiff was thrown was
loose and defective. The said defects arose from, or had not
been discovered or remedied by reason of, the negligence of
the defendants, or of some person in the service or
employment of defendants, or by some person in the service of
employment of defendants intrusted by defendants with the
duty of seeing that said ways, works, machinery, locomotive
engine, or cars were in proper condition." The second
count of the complaint, as amended, after making the
prefatory averments substantially as contained in the first
count, alleged the negligence as follows: "Plaintiff
avers that he was caught, run upon, and dragged as aforesaid
and suffered said injuries, damage, and loss, by reason of
the negligence of a person in the service or employment of
the defendants, to wit, one L. M. Livingston, superintendent
of the dump, whose name is otherwise unknown to plaintiff, to
whose orders or directions the plaintiff was then and there
bound to conform, and did conform, and his said injuries and
damage resulted from his having so conformed. Said L. M
Livingston negligently ordered or directed plaintiff to go
and catch upon cars loaded with ore, while the same were in
motion, with a locomotive steam engine attached thereto and
moving thereon, and ascend cars and put on the brakes, which
was dangerous and hazardous to plaintiff, who was young and
inexperienced in said work, being a minor, aged about 16
years, and unsuited to perform such dangerous work as the
said L. M. Livingston knew or ought to have known. And
plaintiff avers that said order by L. M. Livingston was a
negligent order, because the said Livingston had failed
beforehand to sufficiently instruct him as to the dangers of
said work which he was ordered to do, or to inform himself
whether or not plaintiff had been so instructed by
defendants; and plaintiff further avers that, on account of
his youth and inexperience, he did not himself sufficiently
understand and realize the dangers of the work, and that
defendants had never instructed him as to such dangers."
In the third count, as amended, the negligence complained of
is alleged as follows: "The plaintiff avers that the
cars which were so loaded with iron ore by defendants were
smaller than ore cars such as are ordinarily used on a
railroad for carrying freight, and from three to five of said
cars at a time were pushed upgrade from the place where the
ore was loaded on them, along a track which ran through a
'cut' the sides of which were very close to the said
cars, and at the end of said track at the top of the grade
the ore in said cars was dumped into a large pit many feet
below, from which pit it was carried by machinery into the
washer; that there were no means or appliances at the end of
track at top of grade to stop the said cars from going over
the dump and falling many feet below, and the only means used
to prevent this danger was the brakes on the cars themselves,
which was an insufficient means, and in consequence said cars
frequently fell over the dump,-the very cars by which
plaintiff was run against, as aforesaid, having so fallen
over the dump and become broken a short time before
plaintiff's injury occurred. Plaintiff avers that said
track upon which the cars were so pushed, and said dump where
they were emptied of their contents, were not a safe place
for plaintiff, on account of his youth and inexperience, to
work, but was a hazardous and dangerous place for him to
work, and that he was caught, run upon, and dragged as
aforesaid, and suffered said injuries, damages, and loss by
reason of the negligence of defendants in putting him at such
hazardous and dangerous work for a youth of his immature
strength, years, and experience. And plaintiff avers that he
was not employed to do this dangerous work of catching and
climbing upon cars, but that he was employed to defendants by
his father, J. T. Goforth, to pick mud balls out of the ore
at the washer, and to work about the washer, which was work
suited to his youth and inexperience, and that defendants
were guilty of negligence in changing him from this safe work
to the dangerous work of catching and climbing upon cars. And
plaintiff further avers that he was never instructed by
defendants as to the dangers of such work, and that, on
account of his youth and inexperience, he did not
sufficiently understand and realize himself the dangers of
such work."
To the
first count of the complaint the defendants demurred upon the
following grounds: (1) Uncertainty in this: that it does not
appear whether the injury was caused by a defect in the
locomotive, or the car on the track, or the switch, or the
means of ascending the car, or the hand hold of the car. (2)
The name of the person whose duty, it is alleged, it was to
see that the ways, works, and machinery of defendants were in
proper condition is not mentioned. (3) It does not appear how
the alleged defect caused or contributed to the alleged
injury. Under the opinion on the present appeal, it is
unnecessary to set out the demurrers to the second count of
the complaint.
To the
third count of the complaint the defendants demurred upon the
following grounds: (1) It does not appear, from the facts
alleged in the third count of the complaint, that the
negligence charged was the proximate cause of the
plaintiff's alleged injury. (2) It does not appear how
the absence of sufficient means to stop said cars caused or
contributed to plaintiff's injury. (3) It appears from
the allegations of said third count that the absence of
sufficient means to stop said cars at the top of the dump
other than brakes on the cars themselves, was the occasion,
and not the proximate cause, of plaintiff's injury. (4)
The only duty imposed by the law upon the defendants because
of plaintiff's minority and inexperience, as alleged in
the third count, was to properly instruct him as to the
dangers of the work upon which he was engaged, and there is
no allegation...
