63 So. 693 | Ala. Ct. App. | 1913
The appellant prosecuting this appeal was the defendant in the court below. The only counts in the plaintiff’s complaint not eliminated in the process of pleading, or by charges of the court, are counts 2, 3%, and 7, and it Avill not be necessary to consider rulings on other counts shown by the record. Counts 2' and 31/2 are drawn under and base a right of action on the state Employers’ Liability Act. — Code, § 3910. Count 7 is drafted by the pleader to seek a recovery under the act of Congress knoAvn as the federal Employers’ Liability Act.
The point made, and so strenuously insisted upon by the appellee’s counsel, that this appeal is only from
There is nothing in tbe demurrer attacking tbe second count as bad because containing alternative averments stating no cause of action. Tbe plaintiff in this count alleges but one breach resulting in injury, and no conjunctive or disjunctive causes of action. There was but one specification of negligence a's such made; that was tbe defective engine, and the defendant was clearly informed of the matter to be put in issue under tbe allegations of this count. — Birmingham R. L., & P. Co. v. Hunnicutt, 3 Ala. App. 448, 57 South. 262. Tbe gravamen of tbe count is tbe averment of but one cause of action, grounded on tbe negligence of tbe defendant by reason of a defect existing in its ways, works, machinery, or plant producing tbe injury. Tbe averment in this count, particularizing what part of tbe ways, works, machinery, or plant was defective by naming tbe defective instrumentality — that is, averring that tbe engine on which tbe plaintiff was riding was defective, without designating the particular part of tbe engine— is sufficient. — Mary Lee Coal Co. v. Chambliss, 97 Ala. 172, 11 South. 897; Sloss-Sheffield Steel & Iron Co. v. Hutchinson, 144 Ala. 221, 40 South. 114; West Pratt Coal Co. v. Andrews, 150 Ala. 368, 43 South. 348.
Count 7 is also attacked because of the generality of its averments, but objections because of the generality of averments of negligence in a complaint, amounting to little, if any, more than the conclusions of the pleader, are untenable under the rulings of the Supreme Court running back as far as Leach, et al. v. Bush, et al., 57 Ala. 145. The defect in the engine is alleged as having been due to the negligence of the defendant, and it was therefore unnecessary to aver that the defect had not been discovered or remedied owing to the negligence of the defendant, as contended by appellant. The allegation that the defect was due to the negligence of the defendant was equivalent, in legal effect, to saying that the defendant had knowledge of the defect, or failed to use due care to acquire knowledge of it. The allegation in this count that the plaintiff was negligently thrown.
No exception is shown to have been reserved to the ruling of the court on defendant’s motion to strike count 7, drafted under the federal act, as improperly joined with counts 2 and 3'%, seeking a recovery under the Employers’ Liability Act of this state, as is necessary to properly present the question. — Gaston v. Marengo Imp. Co., 139 Ala. 465, 36 South. 738.
It may be permissible to say, however, that the court .was not in error in its rulings on this motion. The systems of jurisprudence of the state and of the United States together form one system which constitutes the law of the land for the state, and concurrent jurisdiction with the federal courts is conferred on the state courts> by the federal act in the enforcement of rights of action accruing under it. Under the practice in vogue in this state, separate and independent causes of action arising out of the same transaction and relating to the same subject-matter may be joined in different counts of the same complaint, and one who is entitled to sue for the consequences of a wrongful or negligent act of another is not required to split up> his cause of action, but may recover all the damages in one action. —Birmingham So. Ry. Co. v. Latimer, 141 Ala. 420, 28 South. 363, 109 Am. St. Rep. 40, 3 Ann. Cas. 461; B. R., L. & P. Co. v. Norris, 2 Ala. App. 610, 56 South. 739; B. T. & T. Co. v. Still, 7 Ala. App. 556, 61 South. 611; C. of G. Ry. Co. v. Morgan, 161 Ala. 483, 49 South. 865. See, also, the discussion of the right to bring an action under the provisions of the federal act, common law,
The defendant requested the general charge on count 3% of the complaint, and insists that the refusal of the court to give this charge is error because- there was no proof offered on the trial to show that the conductor was authorized to give the negligent order testified to by plaintiff, or that the plaintiff was bound to obey the order; the order in question of the conductor, as testified to by the plaintiff being in effect an order given the plaintiff to go, or remain on the engine and go outside and watch it, after the conductor hneio of the defective condition of the engine. The plaintiff testified that at the time he received his injuries he was a messenger in the employ of the defendant, engaged in watching and looking after a “dead” engine or locomotive of the defendant, on which he was riding, that was coupled to the freight cars in a train running from Thomasville, Ga., to Montgomery, Ala., over defendant’s railroad. It was the plaintiff’s duty while en route, as testified by him, to oil the engine, keep it cool, watch it, and if he saw anything wrong, to report it to the. conductor. In the performance of these duties of his employment, according to the plaintiff’s testimony, he did see something wrong with the engine, and reported it to the conductor, and received the order from the conductor as testified to by. him in that connection. The conductor as a witness for the defendant denied that he gave the plaintiff such an order, and stated that it was not his place to tell the. plaintiff anything, but also stated on cross-examination that “to a certain extent” the entire train and every employee on it was under his charge and control; that the plaintiff was a watchman on the dead engine being hauled in the train under his charge as conductor; and that it was the plaintiff’s duty, in con
It is further urged that the general charge should have been given as requested by the defendant as to this count (3%) because, it is insisted, the defendant’s plea of contributory negligence was proven by the plaintiff’s testimony. It is true, as emphasized by counsel for appellant in brief, that the evidence as set out in the bill of exceptions shows that in the conversation testified to by the plaintiff as having been had between himself and the conductor when the train was stopped at Sprague Junction, just prior to the time of receiving the order complained of, the plaintiff did ask the conductor to put the engine out of the train and have it fixed by a machinist, as it was in bad shape, and did say he did not want to risk it, as “it might derail us and kill us.” It is also true that it is further shown that the plaintiff testified that after he had made this statement to the conductor, in the conversation with him referred to, and the conductor had answered by saying something about the defendant company’s having lots of money, he then replied, “All right, I do not want to get killed,” and that almost immediately after this conversation the plaintiff obeyed the order given him by the conductor to go back upon the engine, and that he remained on the engine from that time until the train pulled out from Sprague'Junction a few minutes afterward, and up to the time of receiving his injuries. The evidence of the plaintiff also shows that at the time the order was given the conductor and the plaintiff were standing on the ground close to the dead engine (the
As said by Justice Denson in delivering the opinion of the court in Birmingham M. & C. Co. v. Skelton, 149 Ala. 465, 473, 43 South. 110, 112, quoting from Justice Holmes in McKee v. Tourtellotte, 167 Mass. 69, 44 N. E. 1071, 48 L. R. A. 542, “the nature and degree of the danger, the extent of the plaintiff’s appreciation of it, and the exigency of the work, all enter into consideration, and no universal rule can be laid down.” “The servant does not stand on the same footing with the master. His duty is obedience, and if, when in the discharge of that duty, he is damaged through the neglect of the master, it is but meet that he should be recompensed. The essential inequality in the positions of the parties is deemed to warrant the deduction that a prudent man has a right, within reasonable limits, to rely upon the ability and skill of the agent in whose charge the common master has placed him, and is not bound at
According to the plaintiff’s testimony, the conductor «examined the defective condition of the engine that was •the subject of discussion and gave it as his judgment ithat it would make the remainder of the trip all right, and proceeded on the journey in charge of the train of which the engine was a part, thus giving assurance of its safety to the plaintiff. The conductor was the plaintiff’s superior, and from the nature of the callings of the two men, the plaintiff would appreciate that the conductor would be able to make a more accurate forecast, and he would have the right to rely upon the skill and ability of his superior and obey his orders within reasonable limits. When the order was given, the train was about to be put in motion. Unless the plaintiff obeyed the order and got upon the engine, he would probably be left by the wayside at a place some 20 miles from the place of his destination; he necessarily must act quickly on the exigency of the moment. In doing so and obeying the order, can he, under all of the circumstances, be said to be guilty of contributory negligence as a matter of law, or is it not rather a complex question for the jury, under the particular circumstances, to say whether or not he was justified, as a prudent man, in surrendering his own opinion and obeying the superior’s command? We do not think the court
It is claimed by appellant’s counsel in brief that the plaintiff failed to prove a cause of action under the seventh count of the complaint, framed under the federal Employers’ Liability Act, in that, as the dead engine on which plaintiff was riding while engaged in his employment as a messenger or watchman carried no traffic and was not being used for the purpose of hauling cars carrying commerce, it is argued that it was not an instrumentality used by the defendant at the time in interstate commerce, and that, therefore, the plaintiff could not be said to have been injured “while” engaged in interstate commerce. It was shown by the evidence that the plaintiff, an employee of the defendant, was sent by the defendant from Montgomery, Ala., to Thomasyille, Ga., to bring back over its railroad between those points a dead engine — that is, an engine not running under its own motive power, but pulled or hauled in a train of cars in a manner similar to that in which ordinary cars are pulled or hauled over the rails by a live engine as a means of motive power. The plaintiff’s duties required him, while engaged in this employment, to ride on the dead engine from Thomasville, Ga., to Montgomery, Ala., as “messenger” or “watchman,” which we gather from the evidence to be an employment in this instance in the nature of a caretaker. The plaintiff was injured while engaged in the performance of his duties under this employment, as he had gone to Thomasville, Ga., and was returning to Montgomery, Ala., on the engine in a train of cars operated by the defendant over its railroad, at the time he received the
In Colasurdo v. Central Railroad of New Jersey (C. C.) 180 Fed. 832, it was held by the United States Circuit Court, and affirmed by the United States Court of Appeals, 192 Fed. 901, 113 C. 0. A. 379, that the act applies to a repairer of a switch used for both interstate and intrastate commerce. It was said by the court in the opinion rendered in this case: “We think the statute [referring to the federal Employers’ Liability Act] was intended to apply to every carrier while engaging in interstate commerce, and to an employee of such carrier while so engaged, and, if these conditions concur, the fact that the carrier and the employee may also be engaged in intrastate commerce is immaterial.” — 192 Fed. page 903, 113 C. C. A. page 381. This holding effectually answers the contention of appellant that it was entitled to the general charge on the seventh count because it was alleged in that count that the plaintiff was injured while on a train composed of an engine and cars engaged in interstate commerce, while the evidence showed that only a part of the cars in the train were engaged in carrying interstate traffic. To the same effect is the case of Horton v. Seaboard Air Line Ry. Co., 157 N. C. 146, 72 S. E. 958. As illustrating the construction put upon the federal Employers’ Liability Act by the federal courts, supporting, we think, the construction we have given to it as applied to the instant case, see Darr v. Baltimore & O. R. R. Co. (D. C.) 197 Fed. 665; Zikos v. Oregon R. & Navigation Co. (C. C.) 179 Fed. 893; Behrens v. Ill. Cent. R. Co. (D. C.) 192 Fed. 581; and Second Employers’ Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. See, also, the following holdings by different
In this connection, a decision by our Supreme Court in the case of Kansas City, M. & B. R. R. Co. v. Flippo, 138 Ala. 487, 35 South. 457, is called to our attention by counsel for appellee in brief. The holding in that case, on a state of facts showing less connection of the use of the instrumentality of commerce with interstate traffic at the particular time of injury than in the present case, was that it should have been left to the jury to determine if at tlie time of the accident the car was being-used in interstate commerce. It is illuminative by analogy of the subject, and tends to point the way to a .proper construction by this court of the federal statute under consideration, that our Supreme Court, in speaking of the federal Safety Appliance Act, said in the opinion of the court in M., J. & K. C. R. Co. v. Bromberg, 141 Ala. 258, 274, 37 South. 395, 398: “It would be a narrow and limited construction of this statute to say that it was only applicable in cases where the cars at the very moment of the injury are being actually'used in moving traffic.”
It is our conclusion that the court ruled correctly in refusing- the general charge requested by the defendant on the seventh count of the complaint.
From what has been said Avith reference to count 3%, it will be seen that it is our opinion that it was not error to refuse the general charge for the defendant on the second count.
After verdict and judgment in favor of the plaintiff for $500, the defendant made a motion for a new trial,
We have carefully considered the evidence, and cannot say, under the rules obtaining in an appellate court Avhen reviewing the ruling of a primary tribunal, that the trial court in this instance was in error in refusing to set aside the findings of the jury on the evidence and grant the defendant a new tidal because of the insufficiency of the evidence to support the jury’s finding. The evidence was in conflict, and its preponderance depended upon the credence given it. On a review of the action of a trial court in denying the motion, it is not to be disturbed, Avhere the record shows this state of evidence, as every reasonable presumption is to be indulged in favror of the action of the trial court in refusing to set aside the verdict because contrary to the evidence. —Mobile L. & Ry. Co. v. Davis, 1 Ala. App. 338, 55 South. 1020; Montgomery-M. Mfg. Co. v. Leeth, 2 Ala. App. 324, 56 South. 770; L. & N. R. R. Co. v. Hutcherson, 174 Ala. 609, 57 South. 379; U. S. C. I. P. & F. Co. v. Granger, 172 Ala. 546, 55 South. 244.
Furthermore, it must be concluded, under the rulings of the Supreme Court, that the point made by counsel in behalf of appellee is Avell taken, in that, as the bill of exceptions, AAdierein it refers to the motion for a neAv' trial, does not purport to contain all of the evidence offered before the court on the hearing of the motion, the presumption must be indulged that there was evidence before the court sustaining and justifying its conclusion in denying the motion. The bill of exceptions in this particular does not purport to set out all of the
The application of this rule under the holdings of the Supreme Court to the case in hand disposes of any necessity to discuss the second ground assigned, as it was necessary, to a proper review of the ruling assigned as error on that ground, that the bill of exceptions affirmatively show that it contained all the evidence before the court on the hearing of the motion; for, nothing to the contrary appearing, it will be presumed, in support of the trial court’s ruling, that there were affidavits or other testimony before the court on the hearing showing that the newly discovered evidence relied on had not been discovered since the trial, or that it
We find no error among those assigned and insisted upon authorizing a reversal of the judgment of the lower court.
Affirmed.