Louisville & Nashville Railroad v. Bouldin, 110 Ala. 185

Louisville & Nashville Railroad v. Bouldin

110 Ala. 185 | Ala. | 1895

McCLELLAN, J.

The first count of the complaint' alleges that while the intestate, Bouldin, was rightfully standing on the foot-board of a moving switch engine, with his foot projecting over the edge of said board, his *198foot came in contact with, an oil-box which had been left on the defendant’s road-way, and so near to the rail of defendant’s railway as to strike Bouldin’s foot, whereby he was thrown to the ground, where he was run oyer by the engine, and killed, &c.; and that said oil-box, "so left upon the defendant’s roadbed, and so near to the rail of its track, was a defect in the condition” of defendant’s said roadway or track; and that said defect arose from, or had not been discovered or remedied owing to, the negligence of the defendant or of W. E. Oakley, “who was then and there the defendant’s yardmaster, and was intrusted by the defendant with the duty of seeing that the ways, works, machinery, and plant of the defendant in and near the defendant’s said yard, where said injury was received, were in proper condition.” In drawing this count, the pleader obviously intended to present a case under clause 1 of § 2590, of the Code. It is clear — confessed, indeed — that this count is not good under that subdivision, because it shows that the oil-box was a foreign substance, having no other connection or‘relation with or to the track than arose from its having been left in dangerous proximity thereto, and hence was not a defect in the condition of the track (the track was not at all defective), but a mere extraneous obstruction to the proper and safe use of the track, as would have been a car standing upon it when this engine was moving along there.—Railroad Co. v. Burton, 97 Ala. 240, 246.

But it is insisted that, whatever may have been the purpose of the pleader, this count avers every fact essential to a recovery under clause 2 of said section, as for the negligence of a person in the employment of the defendant having superintendence intrusted to him, committed while in the exercise of such superintendence. This position is based on the averment of the complaint that Oakley was the yard-master of the defendant in respect to the yard where the injury was inflicted, and was intrusted with the duty of seeing that the ways, works, machinery and plant there used by the defendant were in proper condition. The court cannot judicially know from the mere fact that Oakley was yard-master that he was intrusted with the superintendence in respect of keeping the tracks in the yard free from obstructions ; and, so far from the other averment just set out being *199the equivalent of a statement that he was intrusted with such superintendence, it excludes the idea of superintendence in relation to obstructions by limiting the duty alleged to have been intrusted to him to seeing that the track was free from defects and in proper condition. The existence of this obstruction, confessedly, not being a defect in the condition of the ways of the defendant, and the track, notwithstanding its existence, being in perfect condition, it is clear that, on the averments of this count, Oakley had performed the full measure of the duty intrusted to him of seeing that the ways were in proper condition. The count shows that the way was in proper condition, and hence it fails to impute negligence to Oakley.

Nor is the count a good one under the common law. It imputes negligence in the alternative either to the defendant or to Oakley. If it was Oakley’s negligence, the defendant is not liable, unless he had superintendence intrusted to him, and was negligent while in the exercise of such superintendence, as we have seen ; and this is not alleged. The allegation being that the negligence was that of the. defendant or Oakley; facts must be averred importing the defendant’s liability both for its own and Oakley’s negligence. Such facts are not averred ; and, in any view, the count is bad.—Railroad Co. v. Dusenberry, 94 Ala. 413.

The second count is open to the same objection. While it refers to the oil-box as an “obstruction,” it manifestly uses this word as synonymous with “defect” in the ways, works, &c., and alleges that the “obstruction” arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or some one employed, &c., and intrusted with the duty of seeing that the ways, &c., were in proper condition. This count, considered as under clause 1 or 2 of the statute, was further bad for not averring the name of the person intrusted by the defendant with a duty in the premises, or for not averring ignorance of the name of such person. Railroad Co. v. George, 94 Ala. 199, 214, 215.

We do not consider the question whether the second count shows contributory negligence, because that objection is not specifically pointed out by the assignments <rf demurrer. We construe the assignment which is relied on in this connection to have reference to the failure *200of the count to aver the name of the person ‘.‘intrusted with the duty,” &c., and its purpose to-be to impart emphasis to the necessity for such allegation,' as, non constat, that person may have been the plaintiff himself:

The demurrers interposed to counts 3 and 4 are not insisted on in the brief of appellant’s counsel.

As there was room (a fact to be assumed on the aver-ments of the fifth count) for the safe moving of the engine and train past the obstruction, the engineer was not guilty of negligence in respect of Bouldin, unless he knew or had reason to believe that the latter was in such position on the engine or cars as that he might be injured in passing the oil-box. Count 5 is, therefore, bad for not averring such knowledge or reason to believe that Bouldin was in an unsafe position on the part of the engineer.

The court should not have allowed plaintiff to ask the witness Robertson the question : “State whether or not you were ordinarily careful in keeping a lookout that day?” This called for the opinion of the witness as to what constituted proper care, and his conclusion whether it had been exercised on that day.

The general charge requested by defendant ■ was properly refused on the pleadings and evidence before the court and jury at the trial. The argument in support of the exception reserved to its refusal proceeds on the idea that the evidence shows contributory negligence on the part of Bouldin. This whole question was one for the determination of the jury,, in our opinion, as was also the question whether Bouldin fell under the trucks in. his effort to pass from one end of the foot-board to the other, over the bumpers, or'received his injuries in consequence of his foot striking against the oil-box after he had passed over the coupling between the car and-ténder; If they found the latter to be the fact, the other circumstance of his having come to the place .where he was hurt,' and which was a proper place for him to be, from the other side of the tender, is of no consequence.

Charges 1, 4, 5, 7, 8, 11 and 12 were properly refused. Charges 2, 3, 6 and 9 should, on the considerations we have advanced with reference to counts 1 and 2, have been given.

We understand the tenth charge refused to defendant *201to mean only this : That if Bouldin’s death resulted from the ordinary dangers incident to the service in which he was engaged, as contradistinguished from a danger resulting from or enhanced by the negligence of the defendant, or of some employé for whose negligence the defendant is liable under the statute, the jury should find for defendant; but whether the jury would have so understood it or not in this case is much to be doubted. It was, we think, calculated to confuse and mislead the jury when considered by them in connection with the evidence, and the court did not err in refusing to give it.

For the errors pointed* out, the judgment must be reversed. The. cause will be remanded.

Reversed and remanded.