Louisville & Nashville Railroad v. Jones, 130 Ala. 456

Louisville & Nashville Railroad v. Jones

130 Ala. 456 | Ala. | 1900

SHARPE, J.

A complaint declaring on negligence under tbe employers’ liability act embodied in 'section 1749, et seq., of tire Code, should in respect of certainty conform to rules which under our system apply to pleadings generally. Those rules permit the averment of conclusions, but conclusions when employed must ordinarily be accompanied with averments of fact whereon issues can be understood, joined and tried.—Leach v. Bush, 57 Ala. 145; Laughran v. Brewer, 113 Ala. 509; L. & N. R. R. Co. v. Hawkins, 92 Ala. 243; M. & O. R. R. Co. v. George, 94 Ala. 199; So. R’y Co. v. Arnold, 114 Ala. 187. By this test, and by comparison with the complaint approved in Ga. Pac. R. Co. v. Propst, 85 Ala. 203, counts 2, 3 and 7 of this complaint each well state a cause of action under subdivision 2 of the section referred to.

When based on defects in the ways, work's or machinery of the employer the complaint should describe the defects with such particularity as to inform the defendant of what he is called on to defend.- — 13 Ency. Pl. & Prac., 908. The first count apparently attempts to present a case under subdivision 1 of the same Code section. After averring in substance that plaintiff’s intestate received injuries while employed in replacing a derailed car it concludes as follows: “Plaintiff alleges that said car fell upon his intestate and he -died as aforesaid by reason and as a proximate consequence of *471a defect in tbe condition of tlie ways, works, machinery or plant connected with or used in the said business of defendant, which said defect arose from or had not been discovered or 'remedied owing to the negligence of defendant or of some person in the service of defendant and intrusted by it with the duty of seeing that the said ways, works, machinery or plant were in -proper condition, viz: the appliances used by defendant in or about attempting to get said car upon said rails were not proper and -sufficient for that purpose.” What appliances are here referred' to as having been used to place the car, is not indicated by name, office or other description, though many appliances may have been used in that attempt. This was vicious uncertainty. Furthermore this count shows not that the appliances were defective but merely that they were “not proper and sufficient” for the purpose of placing the car. To escape condemnation by this averment the thing used must have been not only propel', but sufficient to effect the purpose. Conceding that appliances may be defective in respect of adaptability as well as for inherent Haws, yet if they are proper to be used as an auxiliary, the mere fact that they are insufficient to accomplish the whole undertaking does not show they ought not to he used. This is illustrated by the facts of the present case.

Briefly condensed the undisputed facts are that plaintiff’s intestate, as one of defendant’s train crew, was under superintendence of either defendant’’» conductor or section foreman, assisting to place on its track a derailed car. Two “rachet or track jacks” were used to raise and hold up one end of the car while the trucks Avere being pushed under that end by workmen, one of whom was the plaintiff’s intestate, vdio urns partly under the car. While he was in that position pushing the trucks, one of the jacks gave way, which allowed the car to come down and crush the intestate’s head against the trucks, whereby he was killed.. The rachet jacks were about twelve inches high and their force ivas applied and relaxed by means of a rachet and lever working in combination Avith other movable and stationary parts. They Avere exhibited in evidence on the *472trial. There was evidence tending to show that the raehets when jarred were liable to slip and give way, and also that the car fell because the jack received a jar. Some evidence tended to show the jacks careened without slipping and so allowed the car to descend. It was in evidence that the jacks are such as have been in successful use by defendant and several other railroad companies both for raising tracks and cars. That they were ever designed or furnished by defendant to hold cars in position after 'being raised, so as to admit- of work being carried on beneath them, has not been shown. The two uses, one of raising and the other of sustaining cars, against shocks and lateral force to which they may be subjected in placing trucks thereunder are essentially different. One involves the application of leverage to hoist, and the other to make steadfast. Like the simple lever and fulcrum these jacks may have -been well adapted to perform the first though deficient for the latter function. It is practicable in most cases for a car after being raised to be securely propped by simple means, and without machinery, and there is no reason to suppose the company did not intend this should be done whenever it might become necessary for its employes to work under the cars. The employment of rachet jacks without more for the purpose of propping, may have involved negligence imputable to the defendant through the person to whom it entrusted supeidntendence of the work, but the unauthorized employment of an appliance in a use for which it is neither suited nor provided imputes no negligence to the employer in respect of providing machinery or of seeing that it is in proper condition.—Mobile, etc., R. Co. v. George, 94 Ala. 199; Bailey’s Per. Inj., § 615; Felch v. Allen 98 Mass. 572. These considerations show both that the first count was subject to the demurrer and that the evidence did not show a cause of action under the first subdivision of the statute.

It was proper to submit to the jury the determination of the cause as presented by the 2d, 3d and 7th counts.

Damages in such cases if recoverable are to be measured by “the pecuniary value of the life of the employe *473to his next o'f kin, resulting either from a relation of dependency or from the distribution of such estate as it may be inferred from the evidence he would have earned and saved but for untimely death.”—L. & N. R. R. Co. v. Trammell, 93 Ala. 350. That the intestate’s mother was a widow was a fact relevant to show that she stood in a. relation of dependency and, therefore, would probably have received contribution from him had he lived. This from a legal as 'well as moral standpoint since under section 3233 of the 'Code the son is legally liable for the support of an indigent mother.

Evidence of the decedent’s experience in railroading, was relevant, on the quantum of damages by way of showing earning capacity and also on the question arising under the defense of contributory negligence. The doctrine applicable to that phase of the case being that an employe may rely upon those in authority over him to see that appliances used for the business in hand, will be reasonably safe unless from observation or experience or information from other source, he knows and appreciates the danger involved in the use of such as are provided.—So. R’y Co. v. Guyton, 122 Ala. 231; Bailey’s Per. Inj., §§ 841, et seq.

'The questions addressed to Parmer as an expert witness were each based on a phase of the evidence, and neither they nor the answers were subject to objection. Those answers considered as expert testimony were permissible statements of opinion rather than conclusions of fact.

Ordinarily the fitness of a railroad appliance for special uses of one company may be tested by what is shown to be the custom of well regulated railroad companies with respect to such uses under like circumstances. The practice of a few such companies though it may tend to show what is the custom, does not have the effect as a conclusion of law.—L. & N. R. R. Co. v. Hall, 87 Ala. 208; Richmond, etc., R. Co. v. Weems, 97 Ala. 270. In Wecm’s case a charge proposing to make a standard test of duty by the usage of five railroad companies was held to be invasive of the jury’s province. Charge 6 referring to eight companies for a like purpose is subject to the same objection. This charge and likewise *474■charges 7 and 8 would have withdrawn froin the jury the question of whether there was negligent superintendence in omitting to use supports in addition to the jack, for though they have been in general and proper use for replacing cars, due cure might require that under circumstances like those of this accident their use should be supplemented by other supports.

Acts and conduct of the decedent such as are hypothesized in refused charges 9 to 15, inclusive, do not show negligence as a legal conclusion unless he was chargeable with knowledge that the jacks were liable to fall. These charges pretermit inquiry into the fact of such knowledge.

Refused charge 16 seems to attempt a statement of the rule of damages laid down in Trammell’s case, supra. By ^substituting the word “so” for “as” the language of that rule is changed and its meaning obscured if not perverted.

■Charge 17 gives such prominence to a phase of the evidence favorable to the defendant as to depreciate other evidence not so favorable arid for that reason if not for others was properly refused.

What is assigned as error relating to plea 8 is unsupported; that idea not being in the transcript.

For error in overruling the demurrer to the first count and in submitting that count to the consideration of the jury, the judgment must be reversed and the cause remanded.

Reversed and remanded.