88 So. 196 | Ala. Ct. App. | 1920
The plaintiff brought suit to recover of defendant damages for killing his mule, and the suit as originally filed on September 24, 1918, was against the Southern Railway Company. On April 3, 1919, plaintiff amended his complaint by striking out Southern Railway Company, and inserting Wm. G. McAdoo, as Director General of Railroads. The defendant pleaded the general issue and a special plea to the amended complaint, saying:
"That he is not now and has not been since that time in the control or operation of the railroads in the United States, and that he is not subject to suit as such Director General of Railroads, as set out in the amended complaint, and that the plaintiff is not entitled to recover in this action against him."
To this special plea several grounds of demurrer were interposed, the judgment of the court reciting that the demurrers to the plea were sustained. One of the grounds of demurrer was that the matters alleged was available to the defendant under the general issue, and on this ground the demurrers were properly sustained. Under the amendment to the complaint, which was allowed, it appears, without objection, it was necessary, for the plaintiff to recover, that Wm. G. McAdoo should have been Director General of Railroads at the time of the amendment.
The court judicially knows that such was not the case, but that at that time Walker D. Hines was Director General of Railroads, and consequently the affirmative charge asked for by the defendant should have been given.
Written charge 5 was properly refused. It was the duty of the engineer to keep a lookout for stock on or near the track, and to relieve him of this duty when the mule "had gotten out of sight of the engineer" is not the law. The mule may have been out of sight because of the engineer's failing to keep a lookout, or his negligence in other respects. Then the mule may have gotten out of his sight and then come back toward the track, in which event he would not be relieved of the duty of exercising proper care, "until the fireman could notify him that the mule was running toward the engine," as the charge assumes.
One vice, at least, of charge 6 is that it tended to pretermit the duty of those in charge of the train to keep a lookout for stock, and to confine defendant's duty in this case to avert injury only after discovery that the mule was running toward the engine. Charge 7 was misleading and confusing, and we think it was properly refused in this case.
For the error pointed out, it necessarily follows that the cause must be reversed.
Reversed and remanded.
