74 So. 383 | Ala. | 1916
Lead Opinion
Appellee, as administrator of the estate of W. M. Williams, deceased, brought this suit against the appellant for recovery of damages for the death of his intestate caused by his being run over by one of the trains operated by appellant.
There were originally five counts in the complaint, but the fifth count went out on demurrer, and counts 1, 2, and 3 were
The count further alleges that plaintiff’s intestate started across the bridge to look after the work progressing at the northern end; that in so doing he was “in the discharge of his duty with the defendant, and in a place where it was necessary for him to be in the discharge of his said duty.” It is then averred that while plaintiff’s intestate was thus walking on the bridge one of defendant’s passenger trains, approaching from the south, ran upon and killed him. It is further averred that the agents or servants of the defendant in charge of said train owed the intestate the duty to keep a lookout, and that, failing to keep such lookout, they failed to discover him in time to avoid injuring him.
Appellant’s counsel insist that the count shows that plaintiff’s intestate was a mere licensee, and that the defendant owed him
To the same effect is the language of Mr. Thompson, in his work on Negligence, § 1839-1840, which read in part as follows: “Persons lawfully at work in repairing a railway track, or in repairing a highway where it crosses a railway track, cannot be expected to pursue their labors and at the same time maintain a constant lookout for an approaching train. They are passive, and are not a source of danger to the train. Those who are driving the train are active, and are handling and in control of the instrument of danger and mischief. The obligation of reasonable care which the law puts upon the railway company under these circumstances therefore demands nothing less than an active vigilance in favor of persons thus lawfully at work upon the track, and the giving of seasonable danger signals to arouse their attention and enable them to get out of the way before it is too late.
“A person employed by one who has entered into a contract with the railroad company to do a job of work upon its road is obviously entitled to this measure of care. * * * A person thus employed by an independent contractor is neither a servant of the railroad company nor a trespasser on its track, and, if free from contributory negligence, is enittled to recover for injuries inflicted upon him by the negligence of the servants of the company.”
See, also, 33 Cyc. 764, where it is said: “Where one is engaged on or about railway tracks or cars in work which is mutually beneficial to himself and the railroad company, and his work requires him to go on such tracks or cars, his going thereon when required is generally held to be by the express or implied
The New York court in a somewhat similar case, replying to the argument of counsel that the deceased was a mere licensee, said: “The defendant insisted * * * it owed the deceased no duty of due care, for the reason that he was a licensee; whereas, he was not a licensee, but was there by the express invitation and agreement of the defendant with his employer engaged in doing work for the defendant on its tracks.”—Froehlich v. Interborough Transit Co., 120 App. Div. 474, 104 N. Y. Supp. 910.
See, also, in this connection, L. & N. R. R. Co. v. Thornton, 117 Ala. 274, 23 South. 778; A. G. S. Ry. v. Skotzy, 196 Ala. 25, 71 South. 335, and 41 Cent. Dig. “Railroads,” § 1225.
The evidence for plaintiff tended to show that, while this track was used by the defendant company, the contract for the repair of the bridge was between the Williams Construction Company, a corporation, and the South & North Alabama Railroad Company, but payment for the work was guaranteed by the defendant railroad company; that the work was to be done under the supervision and direction of defendant’s said civil engineer, Ligón, and that plaintiff’s intestate was merely superintending the laborers engaged; that Ligón was with the intestate on the bridge giving him directions in regard to the repairs, the two walking together from the south to the north end, but that deceased returned to the south end, where he remained for a few minutes watching the laborers at work just beneath the bridge; that intestate again proceeded to cross the creek, on the bride, towards the north, to oversee the workers there. The bridge is shown to have been about 160 feet in length and about 15 feet wide.
The evidence for the plaintiff further tended to show that at the time his intestate started to return to the north end of the bridge the train was not in sight nor within hearing, and that he walked in the center of the track; that the train which struck him was a passenger train, approaching from the south and moving at a speed of 40 or 45 miles an hour; and that the track south of the bridge was straight for three-fourths of a mile. Some of the witnesses for the defendant gave the length of straight track as one mile. The evidence further tended to show that the deceased had been walking on the bridge a minute and a
The evidence of the engineer placed the deceased as ‘two-thirds of the way towards the north end.” No signal of approaching was given; the engineer testifying, “I never gave any signal at all before the train was stopped.” He insisted that he had kept a constant lookout on the track, and that he did not see deceased until he got within a short distance of him, when deceased stepped from behind an upright brace of the bridge and when it was too late to do anything to save him. The engineer further testified that the track was straight and level, and that if deceased had been in the center of the rails of the track he would have seen him. The accident occurred at about 9:30 o’clock in the morning.
What we have herein stated with reference to the complaint suffices to show that we find no error in that portion of the oral charge excepted to.
The judgment of the court below is affirmed.
Affirmed.
Dissenting Opinion
I am constrained to dissent in this case because I am convinced that both the opinion and the decision are wrong. In my judgment, count 4, the sole count which went to the jury, was not in law or in fact, nor intended by the pleader to be, a cause of action under the Employers’ Liability Act, but was intended to state a cause of action under section 2486 of the Code, known to us as the homicide statute. It is perfectly clear and certain that it was treated by the trial court and the defendant as being under the homicide statute, because the trial court
The trial court in this case instructed the jury that the damages recoverable were purely punitive and left to their discretion. Neither party excepted to this part of the charge, thereby conclusively showing that the attorneys for both plaintiff and de- ' fendant, and the trial court, treated the count as being under the homicide statute, and not under the Employers’ Liability Act.
I submit that under the practice in this state counts under the Employers’ Liability Act have become in a number of respects stereotyped, in following the language of the statute, so as to show under which subdivision of the statute the action is brought. Not a one of these stereotyped phrases is to be found in count 4. While the negligence alleged is imputed to the servants in charge or control of an engine, this is purely incidental; and I submit that the thought never entered the mind of the pleader that he was drawing a count under the fifth subdivision of the Employers’ Liability Act. The uniform practice in such cases is to allege the name of the agent or servant who was in charge or control of the engine, or to allege that his name is unknown to the pleader, and thus allege directly and specifically that such named person was by the defendant intrusted with such control, and that, while so in charge or control, he was guilty of the negligence complained of. This must be made an issuable fact, as well as the negligence vel non of such person.
Counts under the fifth subdivision of the Employers’ Liability Act are not intended to charge, and do not charge, negligence of the master, but negligence of the particular servant in charge of the engine, tram car, etc. They must show that such particular servant was guilty of actionable negligence as to the plaintiff or servant injured; that is, a breach of duty owing by one servant to the other, not a breach of duty owing by the master to the injured servant. The servant in charge of the engine, etc., must be liable to the injured servant, or the master is not liable under this subdivision, thought he might be liable at common law or under other subdivisions of the statute. The only negligence attempted to be alleged in this count was the failure of the engineer to keep a lookout for the deceased. No facts are alleged or attempted to be proven to show any duty resting on the engineer in charge of this train to keep a lookout for the deceased or any other person at the place of the injury. Nothing is alleged or proven to show that this engineer had any reason to suspect that deceased or.any other person would be on this bridge. The defendant, or some agent or servant of the defendant, may have been guilty of negligence in failing to notify the engineer that deceased and other servants were working on the bridge, or would be likely to be on or near it, and to be on the lookout for them; yet without such warning or notice to the engineer no duty rested on him to keep a lookout at the time and place of the injury.
It may be true that deceased was not a trespasser, and not a licensee, and had a right to be where he was so far as the defendant was concerned; but it is equally true that, unless the engi
The insufficiency of counts in this respect has been frequently pointed out by this court. A complaint framed under subdivision 5 of the statute, counting upon the negligence of a fellow servant in the charge of an engine, must aver that such engineer knew, or had reason to believe, that the act in question would be likely to injure plaintiff, or that plaintiff was then within the line of danger from such act.— Louisville & N. R. Co. v. Bouldin, 110 Ala. 185, 200, 20 South. 325. Otherwise it shows no breach of duty on the part of the defendant.—Southern Railway Co. v. Goins, 1 Ala. App. 373, 56 South. 253. Where the negligence or wrong relied upon is alleged to have been that of the engineer in charge of the train, in that he “negligently failed to ring the bell or blow the whistle on said locomotive, or to otherwise give warning that he was ready and about to start said cars,’ the count is insufficient in that it fails to show a duty on the part of the engineer to warn intestate that he was ready to move the train. It is also bad in that it alleges in the alternative that the engineer failed to “ring the bell” or “blow the whistle, or to otherwise give warning.”—Lack-Buek Iron Co. v. Holmes, 164 Ala. 101, 51 South. 236. This would be, clearly, an attempt to .charge the engineer with a failure to perform the statutory duties required by section 5473 of the Code of 1907. This section has been held by this court not to apply to cases like the one under consideration.—Lack-Buek Iron Co. v. Holmes, 164 Ala. 101, 51 South. 236. See, also, 7 Mayfield’s Dig., p. 571.
It is very true that an action will lie against the master for the wrongful death of his servant, under the homicide statute, as well as under the Employers’ Liability Act, and that counts may be joined, one declaring under each of the statutes; but if the action is under either subdivision of the Employers’ Liability Act, then it cannot be under the homicide statute. An action under each cannot be joined in one count, because the damages recoverable are entirely different.
If the count in this case should be treated as stating a cause of action against the master at common law, it must fail, because the only negligence attempted to be proven was that of a fellow servant in the common employment with the deceased, for which
The only possible theory upon which there can legally be recovery of substantial damages under count 4 is to treat it as a count under the homicide statute, as counsel for plaintiff and defendant and the trial court treated it. I do not mean to say or intimate that there should be a recovery if the count be good under the statute; but I do say that there cannot lawfully be a recovery of punitive damages under the Employers’ Liability Act. If the count be under this act, how can it be said that it was not error for the court to charge the jury, not only that punitive damages were recoverable, but that only such damages could be recovered?
Of course, we would not reverse on this appeal on account of the charges, because appellant requested the court to so charge. This, however, I submit, is conclusive to show that counsel for plaintiff and defendant correctly treated the count as being under the homicide statute, and not under the Employers’ Liability Act.
If this case is to become a precedent, then “confusion worse confounded” will necessarily follow. Trial courts and counsel cannot follow it without coming in conflict with every decision of this court heretofore rendered on the subject. If we are not to follow a long line of decisions construing statutes, which have time and time again been readopted, with that construction placed upon them, how can we hope to ever have dependable consistency of decision?