51 So. 424 | Ala. | 1910
This suit was brought by the appellee, Chas. A. .Moseley, as the administrator of the estate of Thomas S. Moseley, deceased, against appellant, Birmingham Railway, Light & Power Company, a corporation. Plaintiff claimed damages for the alleged negligence of one of appellant’s servants, to wit, one Cornelius, a conductor on appellant’s street railway, while in discharge of his duties as such conductor, which proximately caused the death of plaintiff’s intestate. There were many counts to the complaint, .but all of them were eliminated by the action of the lower court, except
The defendant below, appellant here, insists upon questions raised by his demurrer to counts 5 and 7: (1) That said counts show that plaintiff’s intestate, who. was a motorman on one of defendant’s street railway cars, and the said conductor who had charge of the car on defendant’s said street railway, into which the car upon which plaintiff’s intestate was, was run, were fellow servants; and (2) that 'subdivision 5 of section 1749 of the Code of 1896 does not apply to street railways operated by electricity, but only to railroads operated by steam, which traverse the country at large, and which are more dangerous to operate than the cars upon an electric street railway.
We think there can be but little doubt that a proper construction of law would declare a motorman upon one car of a street railway to be a fellow servant of a. conductor upon another car of the same railway operating cars over the same lines. Any other construction would be too narrow. Both working for the same master, over the same lines of railway, and for the same purpose, to wit, transporting passengers from one point to another along such line of railway, we declare to be fellow servants. But we think that to declare that the fifth subdivision of section 1749 of the Code of 1896 only applied to railroads operated by steam locomotives, which traverse the country at large, would also be too narrow a construction. It may be true that, as counsel for appellant ably contend, there were no railways operated by electricity at the time this statute was first passed by the Legislature; and it may also be true that the hazard and danger of operating steam locomotives, with heavy trains, which traverse the country at large, is
The averments of negligence in counts 5 and 7 are, according to the former rulings of this court, sufficient. —A. G. S. R. R. Co. v. Davis, 119 Ala. 572, 24 South. 862. It would seem from the standpoint of reason that if plaintiff’s intestate were living, and suing for injuries received, greater particularity in the averments of negligence should be required for the reason that one would naturally presume that the motorman would be acquainted with the duties of the conductor which had been violated, and which caused his injuries; but where the motorman is killed, and his administrator sues, no such presumptions arise, and the same reasons which permit statements of mere conclusions, as to negligence, where a passenger sues for injuries received while ruLing on a car or train, are equally cogent here. As said in L. & N. R. R. Co. v. Jones, 83 Ala. 376, 3 South. 902, first headnote: “It is a general rule of pleading
But there is another ground of demurrer to count 7 which is urged by appellant, viz., “that said count is vague and indefinite.” Said count, in respect to the acts of negligence, after amendment, reads as follows: “Plaintiff avers that his intestate’s death was caused, and plaintiff suffered said damages, by reason and as a proximate consequence of the negligence of some person whose name is to the plaintiff unknown, and who then and there had charge or control of a car upon a track of defendant’s railway, and that said negligence consisted in this, to wit, said person negligently failed to protect said car with any light or signal by which plaintiff’s said intestate should have and could have-been warned, and plaintiff avers that said person is one, to wit, Cornelius, and that he was the conductor of the car into which was run the car upon which was plaintiff’s intestate.” As said in Gleason v. McVickar, 7 Cow. (N. Y.) 42, 43: “ The general rule in relation to-allegations under a videlicet, or scilicit, seems to be that if they be impossible, or contrary, or repugnant to the-preceding matter, they shall be rejected as surplusage; but where they are used to explain yvhat goes before them, and are consistent with the preceding matter, they are material and traversable.” In Brown v. Berry, 47 Ill. 175, 177, we find the following: “The use o.f the videlicet is to- avoid a variance and to avoid á positive averment, which must be strictly proved.” Under these authorities, which define the use of the videlicet, as far-
The demurrer to plea 4 ivas properly sustained on the authority of Central of Georgia Ry. Co. v. Martin, 138 Ala. 531, 36 South. 426. City ordiances regarding the speed of cars are made for the protection of the public, where they have a right to cross or be upon the track of the railway, and not for the benefit of employes operating cars upon such railways.
The ninth assignment of error is to the action of the court in overruling defendant’s demurrer to replication No. 2 as an answer to defendant’s plea No. 14. We are of opinion, after due consideration of this assignment of error, that the court erred in overrulingg defendant’s demurrer to replication No. 2 as an answer to plea No. 14. Plea No. 14 sets up the breach by plaintiff’s intestate of a proper and highly sálutary rule of defendant-, and assigns the same as negligence. The replication admits the rule and the breach, and attempts
Demurrer to replication No. 2 as answer to plea 15 was properly overruled. The replication was a perfect answer to the plea, as both the rule set up in the plea, •and the one set up in the replication, were general rules, made to apply under general, conditions; and the defendant could not make a schedule for the car of plaintiff’s intestate, and also make a rule, which made the schedule impossible under usual and ordinary conditions, and then hold said intestate negligent in doing that which was necessary to make the schedule.
Assignments of error Nos. 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, and 26 are all considered and argued together by appellant, and we think properly so. The question involved in these assignments of error was the inquiry by appellee into the financial and physical condition of plaintiff’s intestate’s mother and his younger
Assignments of error 32 and 33 are without merit, in that the question and answer were not subject to the general objections interposed, and appellant’s counsel argues a different ground from those interposed.
Assignment of error 34 is without merit. The court properly allowed the reading to the jury that part of defendant’s rule book, for the reason that some of de
Assignments of error 35, 36, 37, and 38 are without merit. It was not shown that the signal given by witness was snch in use by defendant, or that plaintiff’s intestate had any knowledge of what it meant. Also assignments 39 and 40 are without merit, as the matter objected to was material and relevant, and to allow a. witness to be recalled for further examination, before the examination of witnesses had closed, was within the discretion of the trial court, and no abuse of that discretion is shown.
The forty-second assignment of error is to the refusal of the court to give the following charge requested by defendant: “If the jury believe the evidence in this case, the plaintiff cannot recover under the seventh count of the complaint.” Both this and the following written charge requested by defendant were properly refused: “If the jury believe the evidence in this case, plaintiff cannot recover under the fifth count of the complaint.” It is a question for the jury, under each count, under all the evidence upon the issues as raised by the pleading, to- say whether the conductor in charge of the front car was negligent and thereby proximately caused the injury complained of; and whether or not plaintiff’s intestate was guilty of negligence which proximately contributed to his injuries.
Charge No. 5 asked by -defendant was properly refused by the court, as all the evidence which would have supported and authorized said charge was properly ruled out by the court.
■ The assignments of error Nos. 48 and 59, both inclusive, cannot be considered for the reason that there are no- charges in the bill of exceptions which were refused
Charge No. 1 given at the request of plaintiff was properly given. It needs no argument to sustain the ruling of the court. It merely states that if plaintiff’s intestate was guilty of negligence, yet, if such negligence did not proximately contribute to his death, then such negligence would not bar the plaintiff’s right of recovery. This is elementary.
For the errors pointed out, the case is reversed and remanded.
Reversed and remanded.