99 Ala. 359 | Ala. | 1892
Lead Opinion
The action is to recover damages for personal injuries. It is much the better practice, when a complaint is amended, to set out in full the complaint or count as amended, unless the amendment is of such a character that it may be readily made by a mere interlineation. We have, however, never construed the statute allowing amendments so strictly as to hold that the pleader may not, by reference to one count in the complaint, adopt a certain specified portion of another, and add to it averments, so as to constitute another and separate count.
The complaint is subject to another objection. As originally found, there was but a single count. The court sustained a demurrer to the complaint. The effect of the judgment sustaining the demurrer was to annul and hold for naught the complaint in its then condition. Until amended, or a new complaint filed, there was no 1st count before the court. The complaint was amended by adding thereto a
We will consider the suificiency of the counts upon which the trial was had. The third count adopted a portion of the first and the whole of the second, with the exception of a single sentence. Written out consecutively in full it reads as follows:
“The plaintiff claims of the defendant fifteen thousand dollars, for that heretofore, on, towit, 1st day of July, 1891, defendant was operating, running, managing and controlling a certain railway known as the East Lake Dummy Line, running from Birmingham in an easterly direction to and by Eritchman’s Garden, to East Lake, Alabama. That on said day plaintiff was in the service or employment of defendant in the capacity of conductor on a certain train, composed of a steam locomotive engine and certain cars, which were then and there being run over and along said railway by defendant, that when said train reached a point on said railway at or near said Eritchman’s Garden, it ran from the main line into a switch or siding, and plaintiff by reason thereof was thrown from one of said cars, on which car plaintiff then and there was in the performance of his duty as conductor as aforesaid, and plaintiff’s leg was fractured, his hip, shoulder and head and various other parts bruised and lacerated, and plaintiff was otherwise seriously and permanently injured.. By reason of his said injuries plaintiff suffered and continues to suffer great mental and physical pain and loss of time, and plaintiff was rendered less able to work and to earn money, and was put to great expense for medicine, medical attention, care and nursing, and plaintiff avers that his said injuries are permanent; and plaintiff further avers that said accident and plaintiff’s said injuries were caused by reason of defects in the condition of the ways, works, machinery or plant connected with or used in said business of defendant, viz., the switch from the main line into the siding onto which said train ran as aforesaid was negligently allowed to be and remain without a lock or other proper and sufficient means of fastening the same, and the same was not kept sufficiently locked or fastened. The said defects arose from, and had not been discovered or remedied owing to the negligence of defendant, or of some person in the service of defendant and entrusted by it with the duty of seeing that said ways, works, machinery or plant were in proper condition.”
Upon this question the .rule is clearly laid down in L. & N. R. R. Co. v. Hall, 91 Ala., on page 121, where, in reference to “ whipping straps,” the court said : “Is it so manifestly serviceable as to command the consensus of intelligent railroad men so generally, as that it cannot be reasonably ignored or disregarded ? Or, is its utility disbelieved and disallowed in the management of many well governed and well regulated railroads ? If- this question be debatable and skilled railroad men honestly differ in judgment as to the utility of this or any other cautionary appliance, and differ to such extent as that many well regulated railroads abstain from their use, then such abstraction is not legal negligence.” In the case of Hall, the principle was applied to roads commonly designated railroads. In the present case the road is designated and distinguished as a dummy road, but there can be no difference in the application of the principle
If it be shown that the omission to provide a lock or proper fastening for the switch was culpable negligence, and the negligence arose as averred in the complaint, and the switch was displaced by an intermeddler, such displacement would not be necessarily such an intervention of an independent intervening cause, as to constitute the sole proximate cause of the injury. The evident purpose of the use of locks or fastenings is to make the switch reasonably safe against the interference of, or displacement by trespassers, as well as accidental causes. In such cases ordinarily the neglect of the defendant in failing to provide locks or fastenings, would be regarded at least as jointly contributing to the result.
The fourth count is clearly defective. The averment that the switch “ was negligently allowed to be open,” does not show a defect in the ways, works, and machinery of the defendant corporation, neither has such an averment any legal or proper connection, with the person whose duty it is to
The evidence shows without dispute that plaintiff had been in the employ of the defendant as conductor for a year. He testified himself “ that the switch had no light or target on it, and had not since I had been running on the road. There never had been a lock or means of fastening on it since I went on the road, a period of twelve months. I had been running on the road for twelve months.”
In the case of The Columbus & Western R. R. Co. v. Bradford, 86 Ala. 574, the court used this language : “ Contributory negligence, which would defeat an action, might have consisted of a failure on the part of the plaintiff, either to reasonably give notice of the defect in appliances used in his employment, or of the negligence of his superiors, if known to him, which produced the injury; or of a failure, after having given such notice, to quit the service to which such defect or negligence was incident, after a reasonable time had elapsed for its correction.”
In Georgia Pacific v. Davis, 92 Ala. 300, the principle is thus clearly stated : “The duty of the company to its employes is to provide a roadway in all respects reasonably safe for the running of its trains, and the performance of the functions imposed upon them by the exigencies of the service, and they have the right to assume without inquiry or investigation that this duty has been discharged. The onus of inquiry or investigation is not upon them. If, as matter of fact, they know of unsafe conditions in any of these particulars, and continue in the service after the lapse of a reasonable time for the defects to be remedied or removed, they assume this additional risk, though originally not incident to their employment.” Many cases are cited in support of the proposition, and it is manifestly just. If .it be conceded that the failure to provide a lock or proper fastening for the switch be a culpable defect, there are no facts in the present record which relieve the plaintiff from being held guilty of contributory negligence under the influence of the foregoing principles.
Reversed and remanded.
Rehearing
The evidence is conclusive and without conflict that the plaintiff voluntarily, and without objection continued in the employment of the defendant for a period of twelve months in the almost daily use of, and with a full ' knowledge of the defect in the ways, works and machinery, alleged to have caused the injury. Under this proof the, court held, that the plaintiff was guilty of contributory negligence. "We are now asked to revise this conclusion. Considered in connection with the evidence, as a general proposition of law, the rule asserted is sustained by an overwhelming array of authorities.
In the case of Rush v. Missouri Pacific R. R. Co., 28 Amer. & Eng. Railroad Cases, 484, the court uses this language : “ There are cases where a servant kn'owing the danger may nevertheless recover; but this is not one of the cases; usually where some instrument or appliance has.become unsafe from use or otherwise, and the danger from its use is not imminent or obvious, the servant may continue in his master’s employment, and use it for 'a short time, with the expectation that the master will restore the defective instrument or appliance to its former condition. Also when the master has been informed with regard to some defect in some instrument or appliance, and he agrees to remedy the defect, the servant may continue for a reasonable time in the master’s employment, so as to give him an opportunity to fulfil his promise. Also when the danger is one to which the servant is not exposed in the ordinary course of his employment, but one which he is at the time requiréd' immediately to encounter by a special command by his master or of a superior servant, without time for reflection or choice on the part of the servant, he may obey the command without being guilty of contributory negligence, or without forfeiting his right to recover in case injury results. But not one of these cases is the present case. The plaintiff’s intestate could have had no hope in the. present case that the railway’s tracks would ever be changed; there was no promise that they would be changed; they were just as they were when originally constructed; and in the ordinary course of his employment the plaintiff’s intestate was using them every day, and knew that he must so use, them every day.” Under the evidence it was held to be a question of law for the court, and that as to plaintiff the defendant was not guilty of culpable negligence.
In Richards v. Rough, et al., 53 Mich. 212, the general proposition is stated as follows : “ A servant who continues without objection to use machinery which he has found to be unsafe, assumes the risk, and can not recover for injuries which he may receive in consequence of doing so.”
The same rule prevails in Wisconsin. Dorsey v. The Phillips & Colby Construction Co., 42 Wis. 583. Many authorites from other courts might be cited.
This State has declared the law in the same unmistakable terms. In Eureka Co. v. Bass, 81 Ala. 201, it is said; “ If the employee, while engaged in the service, acquires knowledge of any defect in the materials, machinery or instrumentalities used, and notice thereby of an increased risk or danger, and afterwards continues in the service without objection or, notice to the employer, he assumes the increased risk himself; but he may notify the employer of the defect, and continue in the service for a reasonable time relying on the employer’s promise to remedy the defect; yet, if the defect is not remedied within the promised time, his further continuance in the service is at his own risk, and he is guilty of contributory negligence.”
In the case of the L. & N. R. R. Co. v. Hall, 87 Ala. 708, which arose under the employer’s act, the doctrine was distinctly declared, that although the defendant may have been fuilty of negligence in the erection and construction of its ridge, if plaintiff knew of the danger, and failed to exercise due care to avoid the danger, and was injured, he would be guilty of contributory negligence. This rule also prevailed in the English courts.
It is contended, however, that the rule as here stated has been changed by statute, and that under the employer’s act, section 2590 of the Code and sub-sections, the employe does not assume the responsibilities of injuries caused by defects
The employer’s act, as found in section 2590 and subdivisions, is a substantial, if not an exact, copy of the English act of 1880. This court is not finally concluded by the decision of any other State court or the British court, in their construction of a similar statute, but the opinion of learned courts upon similar questions are entitled to great weight, and this is especially true when the statute, from which ours was copied, had been construed prior to its enactment by our legislature. Armstrong v. Armstrong, 29 Ala. 538.
In the case or Griffiths v. London & St. Katherine Docks Co., 13 Queen’s Bench Division 259, it is' said: “If the danger is on which was known to the master and not to the servant, the knowledge of the master and the want of knowledge of the servant make together a cause of action, and as it is necessary that these two things should exist in order to form a prima facie case, it is necessary that they should be shown to exist in the statement of the claim.”
The case of Weblin v. Ballard, reported in 17 Queen’s Bench Division, 122, cited in Holborn Gase, supra, supports the conclusion reached in that case; and if the case of Weblin v. Ballard had remained in force as the proper construction of the statute, we would be bound to hold that the construction given by this court to the statute in the Holborn Case was the same as that given by the English courts. In the same volume, 17 Q. B. D., p. 414, the case of Thomasv. Quartermaine, which involved the same question, came up for consideration, and the reasoning of the court tended greatly to weaken the decision of Weblin v. Ballard as an authority. The case of Thomas v. Quartermaine was appealed, and in 18 Q. B. D. 685, the case of Weblin v. Ballard
The act came up for consideration again in the case of Osborn v. London & North Western Railway Co. 21 Q. B. D. 220, in which the principles of law declared by Lord Esher, . M. R. in the case of Yarmouth v. France, supra, by Bowen, L. J. in Thomas v Quartermaine, supra, were re-affirmed. We Rave been unable to find any later adjudication by the English courts construing the English Employer’s Liability
The principle is clearly laid down by Roberts & Wallace in their work on the “Duty and Liability of Employers,” pp. 136, 146, 160, 161, 240 ; and in Buswell’s work on the “Law •of Personal Injuries” the same conclusion is reached. §§ 207, 208, 209.
Many of the States have statutory provisions in regard to the duties of employers, but so far as we have been able to ascertain, none of the States have a statute similar to ours except the State of Massachusetts. Section 5 of the Employer’s Act of the State of Massachusetts — See Acts 1887, Chapter 270, page 899 — is as follows : “An employe, or his legal representative, shall not be entitled, under this act, to any right of compensation or remedy against his employer in any case, when such employe knew of the defect or negligence, which caused the injury, and failed, within a reasonable time, to give, or cause to be given, information thereof to the employer, or to some person superior to himself in the service of the employer, who had intrusted to him some general superintendence.” This section omits the provision in our statute, and in the English statute, “unless he was aware that the master or employer, or such superior, already knew of such defect or negligence.” But this difference in phraseology is immaterial, as the law, without this • provision, would not require the employe to do a useless thing, and the Massachusetts courts do not seem to have regarded the difference as material — holding that their act was “copied, with some variation of detail,” “the intention was merely to abridge the model and make it more compact,” and “therefore, [savs the court] it is proper, if not necessary, to begin by considering how the English act had been construed before our statute was enacted.” The court then cites the cases to which we have referred. Ryalls v. Mechanics’ Mills, 150 Mass. 190. The precise question, which
It is very clear, that so far as the authorities, outside of this State, go, the rule declared in the case of The Eureka Co. v. Bass, 81 Ala. 200, was not abolished by the Employers Liability Act. Possibly, it was somewhat modified, but as we understand the rule, “volenti non fit injuria,” as applied in the particular cases cited from the English and Massachusetts courts, there has been in fact no material modification.
z A more careful examination of section 2590 of the Code, in connection with the qualifying clause, leads us to the conclusion that our construction of the act, as given in Hoiborn Case, supra, was not the proper one. Without the qualifying clause, it is evident there is nothing in the act which, of itself, would abolish the rule of “volenti non fit injuria” as declared in 81 Ala., supra. The qualifying clause was not intended to enlarge the rights of the employe, or extend the liability of the employer, or take away the defense of contributory negligence. It is obscure and involved, but its terms would indicate an intention to restrict the employer’s liability. It says : “But the master or employer is not liable under this section, if,” &c. It does not provide for an additional liability under certain conditions; but the employer is not liable, notwithstanding he may have been culpably negligent in failing to discover certain defects, and negligence, “if the servant or employe knew of the defect or negligence, and failed, in a reasonable time, to give information,” &c. The reasoning of Bowen, J. on this point, in the case of Thomas v. Quartermaine, 18 Q. B. D., supra, is convincing.
It would seem that the legislature, by a statutory enactment, recognized the application of the maxim of “volenti non fit injuria,” as declared by the courts, and out of abundant caution, lest the statute might be construed to give a
It follows that the application for a rehearing must be denied.
