55 So. 458 | Ala. Ct. App. | 1911
This is an action for personal injuries brought by the appellee against the appellant based on the fifth subdivision of the employer’s liability act (Code 1907, § 3910). There was a judgment for appellee, and the appellant appeals and assigns error going to the rulings of the court below on the pleadings, the refusal to give the general charges predicated upon its pleas of contributory negligence, and overruling a motion for a new trial. There is but one count in the complaint, alleging, in substance, that plaintiff (appellee), while in the employ of defendant (appellant) and acting within the scope of his employment and within the line of his duties as a brakeman, was engaged in making a coupling between an engine and a freight car, when the engine was moved against the car, the couplings coming together and mashing his hand and arm. The injury is alleged to have resulted as a proximate consequence of the negligence of the engineer in charge of the engine. The defendant interposed demurrers to the complaint on the grounds that it was not averred what the engineer did that constituted the negligence, and that the negligence averred was a conclusion.
That it is sufficient, and that it is not a conclusion, to allege negligence in general terms upon the part of-the engineer in charge or control of the engine without specifying or averring in what the negligence consisted, but leaving the facts to be developed by the evidence, is a well-settled rule of pleading in this state.—Stanton v. Railroad Co., 91 Ala. 382, 8 South. 798; Mobile & Ohio R. R. Co. v. George, 94 Ala. 199, 10 South. 145; Ga. Pac. Ry. Co. v. Davis, 92 Ala. 300, 9 South. 252, 25 Am. St. Rep. 47; M. & C. R. R. Co. v. Martin, 117 Ala. 367; 23 South. 321; So. Ry. Co. v. Arnold, 114 Ala. 183, 21 South. 954; L. & N. R. R. Co. v. Orr, 121 Ala. 489, 26 South. 35. There is no merit in the demurrers, and they were properly overruled by the trial court.
The plaintiff testified on his direct examination: “I was standing on the footboard of the engine, giving signals to the engineer. I was on the right side of the engine, where the engineer could see me. I was trying to -mfi.be the coupling. I first came ahead with the engine, and struck the car and knocked it off a little, and that knocked the drawhead on the engine out of line to one side. It was one of those reversible drawheads, and worked to and fro, and I reached over and pulled the drawhead to me to bring it on line with the drawhead on the car and the knuckle was locked, and I was working with the lever trying to jerk it in motion so it would open, and while I was at that the engineer came ahead and caught my hand between the drawheads, caught my hand the second time before I could get it out after he mashed it the first time. When I failed to make the
Construing tbe contradictory statements in plaintiff’s testimony most favorable to him, a proper analysis of the whole of his evidence nevertheless leaves no other construction to be placed upon it than that be knew bis signal to tbe engineer to stop had not been seen or was disregarded, and that the engine was moving towards the car, but a few’’ feet away, to which the coupling was to be made, and knowing this, as he states, he further says: “I still held my band on tbe knuckle.” Plaintiff’s statement, “If I knew be (referring to the engineer) was coming back I could have moved my left hand from the knuckle,” taken in connection with his other statements, could only mean that be (plaintiff) did not know the engine was coming back to the point of impact with tbe car, and took bis chances, knowing at tbe time the engine was moving in that direction, for be states bis knowledge of the latter fact in that immediate connection.
While, in attempting to make tbe coupling, it was the duty of the engineer to stop upon a proper signal (tak
The plaintiff was not in a position of obvious peril when the engine was moved, as plaintiff contends, without a signal, and the principles announced in Watson’s Case, 90 Ala. 68, 8 South. 249, and Hissong’s Case, 91 Ala. 514, 8 South. 776, are clearly distinguishable, and not applicable to the case before us. The peril of the plaintiff in this case, as in Richie’s Case, 99 Ala. 346, 12 South. 612, “was incident to a particular position which it was the plaintiff’s duty to avoid, which, so far as the engineer could know or have any reason to believe, there was no necessity or occasion for him to assume, and which there was nothing to suggest plaintiff’s occupancy of to the engineer at the time he set the train in motion.” This proposition is emphasized in the undisputed proof that plaintiff attempted to make the coupling while the engine was in motion in violation of the proven rule prohibiting employee’s attempting to make such couplings. The plaintiff, a brakeman in this instance, had the right to presume that the other employee, an
It is unnecessary from what we have said to notice the other assignments of error. They all bear upon the same proposition, as likewise do the grounds set forth for a new' trial.
Reversed and remanded.