123 Ala. 227 | Ala. | 1898
There was no judgment upon the sustaining by the court of the demurrer to the fifth count of the complaint. The judgment entry simply recites “the defendant thereupon demurred and assigned several separate and distinct grounds of demurrer, as shown by the record, which demurrers having been argued by counsel and understood by the court were by the court duly sustained.” The judgment entry should have proceeded-further and shown a formal adjudication by the court such as, “It is, therefore, considered by the court that the demurrers be and they are hereby sustained.” There being no judgment upon them, we must decline to consider the correctness of the rulings of the court with respect to them, and if this was all that appeared in the record for review the appeal would have to be dismissed.—Jasper Mercantile Co. v. O’Rear, 112 Ala. 247; Morgan v. Flexner & Lichten, 105 Ala. 356; Park v. Lide, 90 Ala. 246; Baker v. Swift & Son, 87 Ala. 530.
The case was tried upon an amendment to the first count of the complaint, which appears as a substitute for the original, the pleas of not guilty and contributory negligence, and other pleadings AAdiich it is unnecessary to consider in determining the question presented.
The plaintiff relied for a recovery upon the negligence-of the engineer. After reciting in the complaint the fact of employment by defendant of plaintiff’s intestate and the order to him by the conductor in charge of the train to make a second coupling, the conductor to make the first, knoAvn as a double coupling, and the location of-the cars with relation to each other and to the engine, and the position assumed by the conductor and plaintiff’s intestate, for the purpose of making the couplings, the complaint alleges the negligence of the engineer to consist in pushing “his engine, back against a lot of loose cars . without having his engine at the time coupled to the same or, if coupled, the said engineer cut loose from the same before they reached the first named two cars, AAdiere the first coupling was to be made. . That said engineer Hayden reversed said engine contrary to the rules of said defendant and pushed with force against said cars just before cutting loose said engine and left them going on a doAvn grade Avithout the protection of- the en
Only one witness was examined who saw the unfortunate accident, and it appears from his testimony that at the time the conductor ordered the intestate to make the second coupling, while he would make the first, that the engineer was about three hundred and fifty feet away on his engine engaged in switching cars; that after the conductor said to McDonald, “You make the second and I will make the first,” to which McDonald replied, “All right Cap, but you be sure to make yours,” which was all that was said between them; the conductor, Dorman, went to the south end of the two cars standing coupled together, some one hundred and fifty feet distant, and took his position on the outside of the track and rails where he Could see the movements of the engine and cars for the purpose of making the first coupling, and McDonald -went to the gap between the two cars and the single car which he was to couple and took his position
There was no error in giving the affirmative charge for the defendant. • '
Judgment affirmed.