140 Ala. 230 | Ala. | 1903
The first amended count in the complaint, comes under sub-division 5 of the employer’s liability act, (Code, 1896, §1749), and alleges that plaintiff’s “Injuries were caused by the wanton or intentional negligence of Bill Jones, who was at the time of said injuries, operating a locomotive upon the track of defendant’s road.” That sub-division makes the master liable, “when such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has the charge or control of any signal, points, locomotive, engine, etc., upon a railway.”
The count does not aver, but leaves it to be inferred, that Bill Jones was an engineer, having control of said engine as an employe of the defendant. From aught averred, he may have been an outsider, having no connection with the company as an employe. The count
The pleader in this count in characterizing the conduct of the engineer, uses the words wanton or intentional negligence. If the act was done wantonly dr intentionally, it cannot be predicated of it, that it was merely negligently done. Such words are frequently inaptly employed, however, as the equivalent of wantonness, and willfulness, or that the act was done intentionally, and we so construe them in this instance. °
The second amended count, was not subject to the demurrer, in that it did not sufficiently charge wantonness, willfulness, or the intentional infliction of the injury by the engineer.
The fifth count avers, “that by reason of the wanton, reckless, willful, gross, wrongful, or intentional negligence on the part of said engineer, he [plaintiff] has suffered the wrongs and injuries above mentioned.”
The words “reckless,” “gross,” “wrongful,” were unnecessary in averring the wanton, willful, or intentional acts of the engineer. We had occasion to consider the effect of such words in a count in which it was averred, that the intestate’s death was caused by “willful act, gross negligence, reckless carelessness and wantonness” of the defendant’s employes, and it was held that these words, used in connection and conjunction with the words, willfulness and wantonness, are to be taken as expressing the same idea and not repugnant to them. L. & N. R. R. Co. v. Orr, 121 Ala. 489; M. & C. R. R. Co. v. Martin, 117 Ala. 367, 382. In the count we consider, the injury is ascribed to the “wanton, reckless, willful, gross, wrongful or intentional negligence on the part of the engineer,” — to either one or the other. We thus have wrongful negligence, and wantonness and willfulness joined in the same count, which cannot be done. Verner v. A. G. S. R. R. Co., 103 Ala. 574. On this account, it was confusing and repugnant. This leaves as the only good count, the one referred to as the second count as amended, which was one for wantonness and willfulness.
The plaintiff requested in writing, and the court gave four charges for him, numbered 1, 3, 5, and 6. We have examined these charges, and find, that with the exception of the 3d, they assert correct principles of law. The 3d, without reference to other objections to which it may be liable, is bad for its failure to postulate wanton or willful conduct on the part of the engineer in not stopping the train. His failure might have been due to inadvertence, or simple negligence, and not to wantonness or willfulness.
The defendant requested charges, many of which were given and many refused. It insists only on error in the refusal to give the 26, 29, 38, 39 and 40th.
The evidence in the case tended to show, that the plaintiff while in the service of the defendant as brakeman, was injured by being run over by an engine on defendant’s road, and that at the time of the accident, the engineer of the defendant was operating the engine, which a short time before the accident had come to a stop, as it approached a crossing.
The plaintiff testified that the conductor ordered him to go ahead to the crossing, to look after it; that it was customary and usual for him to do this; that the engineer was to blow the whistle and ring the bell, when ready to start, on a signal from witness for him to start; that neither the whistle was blown, nor the bell rung, and plaintiff had not given the signal to start, and that he was about four feet ahead of the engine; that there was a hot-box on'the left hand side of the train, which the conductor told him to look after; that while he was standing at tlxe crossing, the engine ran upon him before he could see it; that his back was to it, and he had no way to step out of the way except to step on the pilot ; that as he stepped on the pilot, he slipped off and caught on the knuckle of the engine, and both feet went
The engineer testified in connection with what had been stated by the plaintiff, as to the reason or purpose of the stop, that he did not see the plaintiff crawl from under the engine, and did not see him hanging on the knuckle, looking back; that there were obstacles in the way that made it impossible to see him in that position; that the engine had an automatic bell ringer on it, and the bell was ringing at the time plaintiff was injured; that he knew plaintiff was in great danger when he attempted to get on the pilot, but he did not know he was hanging down with his feet under the pilot, and could not have seen him there; the witness did not make any effort at the time, to stop the engine; did not reverse it, open the sand box or put on air brakes; that after witness saw plaintiff get on the pilot of the engine, the engine went some 30 or 40 feet, and that it could have been stopped if he had known the plaintiff was in danger, or had fallen.
The 26th refused charge ignores the fact that the evidence tends to establish, that the plaintiff was at the time in very great danger, that the engineer saw him on the pilot and knew that fact. If so, it was the duty of the engineer to try to save him, if he could, even if it be conceded that he was under no duty to look out for him. The duty to save plaintiff from injury arose, if and when the engineer saw or apprehended his danger.
The 29th charge proceeds on the predicate, that plaintiff was guilty of contributory negligence.
The 39th is bad, in that the facts hypothesized, if true, did not excuse the engineer from an effort to save plaintiff from injury, if he knew he was in a position of great peril, as the evidence tends to show was the case, and that the engineer knew it.
The 40th charge was also bad. The engineer may not have actually seen the plaintiff, after the time he stepped on the pilot, but have seen him at the time he stepped on, and if so, then he understood his peril, as his own evidence tends to show.
Reversed and remanded.