108 Ala. 330 | Ala. | 1895
The plaintiff’s intestate received injuries while in the service of the defendant corporation from which he died, and this action was brought to recover damages resulting from his death. The court sustained demurrers to the 2nd, 3rd, 6th, 8th and 9th counts of the complaint, and its several rulings in this respect are assigned as error.
After averring the employment of the deceased, the second count avers that he was struck on the head and breast by an iron bar or scrape of great weight and size, which was negligently allowed to fall from defendant’s locomotive engine, and that it fell by reason of the carelessness and negligence of the engineer in charge and control of said engine in this, that said engineer negligently and carelessly suffered said iron bar or scrape to fall from said engine. We are of opinion these aver-ments bring the cause of action within the scope of sub-div. 5 of section 2590, of the Employers Liability Act. If there is any defect in the count, it is not reached by the ground of demurrer assigned. The employer is liable for an injury inflicted upon an employee by the negligence of a co-employee, when such negligence comes within the provisions of the Employees Act, and that without reference to the care and diligence used by the employer in the selection of his servants or employees. The employee’s act, in no wise relieves the employer from the duty of selecting with reasonable care his servant. The act imposes a further liability, and makes him responsible for injuries sustained by an employee, in consequence of any neglect, by the employer or its servants, specified in the act itself. The court erred in sustaining the demurrer to the second count of the com-plaiD t.
Upon the same principle the court erred in sustaining the demurrer to the 3rd, 6th, 8th and 9th counts of the
The. case was submitted to the jury upon the 4th, 5th, 7th and 10th counts of the-complaint. The cause of action in the 4th, 5th and 7th counts was laid under subdivision one of section 2590, which makes the employer responsible for injuries caused by reason of any defect in the condition of the ways, works, machinery, or plant, connected with or used in the business of the master or employer. The 10th count laid the cause of action under subdivision two of section 2590, and charged the injury to the negligence of some one in the service of the employer, who had superintendence intrusted to him, while in the exercise of such superintendence, and the case was tried upon the plea of the general issue, and the plea of contributory negligence, to these counts of the complaint.
The plaintiff filed interrogatories to the defendant under section 2816 of the Code, and before entering upon the trial, moved the court for judgment against the defendant, under section 2820 of the Code, on the ground that the answers were evasive, which motion was overruled. There were twenty interrogatores filed, to all of which, except three, the answers were full, clear and explicit. We have been unable to find any evasion as to any of the interrogatories. In the three interrogatories referred to, the defendant was asked, if there had been a written report made to the company, of the killing of the deceased, and if so to attach the report to the an-, swer. The defendant answered that the engineer and section foreman (giving their names), made unsworn reports of the injury to the deceased, in accordance with the rules of the company, but such reports were made for the private information of the company, were its private property, and the defendant declined to attach the same to its' deposition. Section 2816 of the Code of 1886, which authorizes either party to propound interrogatories to the adverse pM’ty, contemplates the .eliciting of legal evidence, facts' which tend to support the claim of the plaintiff or the line, of the defense. ■ Unsworn ex parte statements of persons.not parties-are mere hearsay and prima facie inadmissible.
We are of opinion the court erred in refusing to allow the witness to answer that a distance of ton feet from a passing train was a safe distance for a section hand to stand while the train was passing. The defendant’s plea of contidbutoi'y negligence avei'red that deceased at the time of the injury, was standing in dangerous proximity to the moving train, &c. The witness was an expert, and competent to give an opinion. There was evidence tending to show that twenty feet would be safe. It was equally competent to show that the distance of ten would be safe. There was some evidence tending to show that deceased was about ten feet from the train when he was struck.
The court at its request instructed the jury to find the issue for the defendant, and this is assigned as ei'ror. Thei’e was no evidence tending to support the 4th, 5th and 7th counts of the complaint, and there was no ei'ror in .the affirmative instruction, so far as the plaintiff’s right to recover on these counts of the complaint. - The plaintiff’s cause of action contained in the 10th count requires a more extended consideration. The- evidence tended to show that deceased was killed by the falling óf an “ash-pan scraper”' from the train as the train passed where the deceased'was standing. The evidence-showed-that the coal rake, but a short time before, became useless, and that when this happens, it is customai-y and
Was the tender properly loaded with the coal, or was
For the errors pointed out, the case must be reversed. Reversed and remanded.