100 Ala. 187 | Ala. | 1893
Yadre Logan prosecutes this action by next friend to recover damages for personal injuries of a permanent nature sustained by him while in the service of McNamara Bros, in consequence of a defect in the condition of the ways, works, machinery or plant connected with or used in the business of the defendants. The complaint avers, in the language of the statute, that the causal defect “arose from or had not been discovered and remedied owing to the negligence of defendants, or of some person in the service of the defendants, and entrusted by them with the duty of seeing that the said ways, works, machinery and plant were in proper condition.” A demurrer to the complaint, assigning its failure to state the name of the person so entrusted, &c., was overruled. We think there was no
The complaint is not offensive to the principles declared in H. A. & B. R. R. Co. v. Dusenberry, 94 Ala. 413, as insisted by the 2d assignment of demurrer. There is no conjunctive or disjunctive averment of several causes of action in one count, but the averment of one cause of action, the negligence of the defendants whereby defects producing the
"We are not concerned in this case by the act of February 23, 1885, to allow “parents or personal representatives of a minor child to sue . . for a wrongful act or omission causing any personal injury to, or the death of, such minor,” nor with judicial expressions as to its construction. The act has been codified, and so materially changed in its codification in respect of the exclusiveness of the parent’s or personal representative’s right of action as that any construction of it in its original form would be wholly inapplicable now. ' The whole of the act as codified is in reality embodied in section 2588 of the Code, section 2587 not in fact being referable to this statute at all, but, as appears by the Code itself, is a mere re-enactment of section 2898 of the Code of 1876. The action by the father of the present plaintiff, a judgment in which is pleaded in bar of this action, was under section 2587 of the Code, which, as it stands here, is to be taken as if the statute of 1885 had never been enacted, and, indeed, as if section 2588 of the Code was not in existence. This last section is dependent on 2587 for some of its provisions, but section 2587 is in no wise dependent upon, or expanded or limited by section 2588. It is a law complete within itself, and the whole field of its operation is marked by its own terms. It merely secures to the father and, in certain contingencies, the mother, the right to sue for injuries to a minor child, a member of' the family, and in such suit to recover the damages which they themselves—the father or mother, as the case may be—have sustained through the injury of a child whose minority so long and only so long as it continued entitled them to his services and involved reciprocal obligations of care and support. But it is not provided and it was clearly not the intention of the codifiers or the legislature which adopted the Code to provide that the recovery of these, in a sense, special damages by the parent should deprive the minor of his own right of compensation for the injuries he had received and which in no case could be taken into the account in assessing the damages sustained by the parent. The truth manifestly is that the only effect which the act of 1885, as codified, has, is to give the father, and, in the contingen
We will not review the action of the court below in overruling defendant’s motion to exclude from the jury all that the witness Carroll testified he said to Donahue. Under one count of the complaint that which ascribed plaintiff’s injuries to the negligence of Donahue in directing plaintiff to drive in the cross-entry where he was injured—we are not prepared to say that this testimony was “patently illegal or irrelevant,” within the meaning of the rule adopted by this court April 13, 1891, and published in 90 Ala. Hence, that rule applies as the record does not show that the grounds of defendant’s objection was specified.
The witness Taylor Carroll had been a coal miner for a third of a century. His general testimony showed that he was perfectly familiar with the business in all its details, including the “driving” or construction of cross entries, their width, the manner in which tram cars are controlled on down grades in such entries, by “spragging” their wheels, the necessity for the driver to take position between
Plaintiff had for some time been a driver in defendants’ mine, but not before the occasion of his injury in this cross entry, and he knew that the cars had to be spragged on down grades, as this was the only way to control their speed and prevent their running against and perhaps over the mule. He knew also that it was the duty of .the driver to get off the cars and sprag them while between them and the wall of the entry or tunnel. Upon being put to drive in this entry he was advised by one Donahue, who had charge of himself and all other drivers, that spragging would be necessary, and that he, Donahue, would go with him on the first trip and show him where to begin spragging. At one place along the down grade the wall of the entry was so close to passing cars, according to a tendency of the evidence, as to render spragging perilous, if not impossible with safety. Plaintiff did not know this. Donahue went with him to the entry and preceded the “trip”—the cars being driven by plaintiff—into it. According to plaintiff’s evidence, Donahue did not tell him at what point to commence to sprag; but it was Donahue’s duty to sprag the wheels on the other side of the cars, and plaintiff, seeing him, by the light or position of his lamp, in the attitude of spragging on that side and being advised by the increased momentum of his cars that the down grade had been reached, jumped off on the other side, as it was his duty to do, for the purpose of inserting sprags in the wheels on that side. He at first missed the wheels and failed to insert the sprags, as is, we infer from the evidence, not an infrequent occurrence. He then ran for some little distance along by the cars endeavoring the while to insert the sprags, until he came to the narrow place before spoken of, where there was not room for him between the cars and the wall and where, in consequence, he was jammed and knocked down under the cars, run over by them, and injured in the manner alleged in the complaint.
On the evidence for the plaintiff this encroachment of the wall beyond the line of safety—this narrowing of the
In respect of the existence vel non of a defect in the tunnel, the question was not necessarily the width of the whole entry, but the width of the space between cars in that
The criticism of charge 3 suggested by the trial court’s offer to give it, if amended by the insertion of certain words is a just one. On the inquiry of negligence one cannot be held to the duty of care in respect of particular circumstances and surroundings unless he knows or has negligently failed to ascertain what those circumstances and surroundings are. One of the material circumstances in the situation with which plaintiff had to deal was the existence of a defect in the entry of which plaintiff was not advised and of which he was not lacking in care in failing to advise himself. Yet charge No. 3 would have authorized the jury to find him guilty of contributory negligence because his conduct was not regulated’by reference to this unseen and unknown danger. The charge should at least have hypothesized the interpolation suggested by the trial court; the jury before holding him responsible for not seeing the defect should at least have found that it was “open to his observation in the exercise of due care on his part.”
Affirmed.