Highland Avenue & Belt Railroad v. Miller , 120 Ala. 535 ( 1898 )

TYSON, J.

Appellee sued to recover damages for injuries sustained by being knocked from and run over by a car on which he was acting as brakeman. The first count of the complaint, as amended, alleges that he was “knocked, shaken or jolted off of said car by reason of a violent jerk or shock of said engine and car,” and that he was “knocked, shaken or jolted from said car as aforesaid, and said injuries were caused by reason of defects in the condition of the means and appliances for controlling the motion of said engine, which means and appliances were a part of the machinery used in the business of defendant, and were worn or broken and not sufficiently effective for said purpose.” It is further alleged, in the words of the statute, that said defects arose from, or had not been discovered or remedied, owing to the negligence of defendant, or some person in the service of defendant and entrusted by it with the duty of seeing that the ways, works, machinery or plant were in proper condition. The third count avers that plaintiff was “knocked, shaken or jolted from said car as aforesaid, and said injuries were caused, by reason of the negligence of a person in the service or employment of defendant who had charge or control of said engine, viz. : the engineer of said engine negligently caused or allowed said car and engine to be suddenly and violently jerked or shocked as aforesaid.” The first count is framed under subdivion one of section 2590, of Code 1886, and the third count under subdivision five of said section. Neither of the counts is objectionable on any of the grounds specified in the demurrer. The first count does not, as contended by counsel aver alternatively two causes of action, or separate and distinct acts of negligence, but charges the negligence of the defendant, and the primary cause of the injury, to have been-the defect in the condition of the means and appliances for controlling the motion of said engine, by reason of which a sudden and violent jerk or shock was imparted to the car on which plaintiff was standing, which jerk or shock caused him to fall from the car. Proof of the alleged defect in the condition of the means and appliances for controlling the motion of the engine was absolutely essential to a recovery under this count, and in the absence of such proof, there could b¿ no recovery, however sudden and violent was the shock, or however negligently it was caused since no other act of negligence is alleged. On the other hand, there could be no recovery, however defective these means and appliances may have been, if no jerk or shock was imparted to the car by reason of the defects. The count charged but one act of negligence, and alleged its direct and immediate effect to have been the sudden jerk or shock, and its indirect, but none the less proximate and resultant effect, the injuries of which complaint is made. Sudden and even violent jerks and shocks may be necessarily incident to the starting and movement of railroad cars operated by steam, however careful may be those in charge of the engine, and of all such sudden movements, not^caused by negligence, the employe assumes the risk; But the employe does not assume any risk of sudden unnecessary movemehts,'even though they be., of 'no more than ordinary-violence, which are caused by the negligence of the engineer in the handling of the train, or by •reason of defects in the engine, or in the means and appliances for controlling its motion, arising from, or not discovered and remedied, owing to the negligence of the employer, or of the person in his employment intrusted With the duty of discovering and remedying them ;• and if, while using due care'himself, he is injured by reason of such negligence, the employer is liable. It was for the purpose of giving a right of action to an employe for injuries resulting from such acts of negligence on the part of co-employes that the employers’ liability act, Under which this complaint was framed, was adopted. •It was not necessary, therefore, to aver in either count that the shock or jerk which caused plaintiff to fall from the car was of more than usual violence, or greater than was ordinarily incident to the starting and movement of cars, since in the first count it is charged to have been caused by reason of the defect in the engine, and in the third by the negligence of the- engineer. The averment in the third count that “the engineer of said engine negligently caused or allowed said car and engine to be sudT denly and violently shocked as aforesaid,” is.sufficient; very general averments of negligence, little short of mere conclusions, being sufficient to meet all requirements under our system of pleading.—Ga. Pac. R’y Co. v. Davis, 92 Ala. 307; Mary Lee C. & R. Co. v. Chambliss, 97 Ala. 174. The words “jerked or shocked,” as used in the averment, do not indicate, in the. alternative, two separate acts of negligence. Other questions arising on the rulings on the pleadings and evidence, are discussed by counsel, but there are no assignments of error relating to them, and they will not be considered.

The evidence shows that the engine was pushing a box-car, half loaded with pig iron and coupled to the front of the engine, along the main track for the purpose of putting it on a side -track, and that the car was pushed from five to ten feet beyond the switch point and stopped. ■ It then became necessary to back the engine and car in order to clear the switch point. Plaintiff stood on the brake-dog on the end of the car next to the engine, within sight of the engineer, and when the car ran by the switch he put on the brake, and when the car stopped he turned off the brake and signalled the engineer to back. Plaintiff testified that the engineer, instead of immediately backing, “gave a hard knock forward and then backed up.” “The car was in front of the engine, and when the engineer came forward to take up the slack the bump knocked me off. Then it started back and the wheels of the car ran over my leg.” The engineer, switchman, and two firemen, testifying in behalf of defendant, stated that after the car was first stopped beyond the switch, there was no forward motion of the car or engine, and that no such motion was neces-. sary to pull back one car, and defendant’s testimony further tended to show that there was no unusual jolt or shock imparted to the car. The evidence showed without dispute that the brake of the engine was broken off at the time of the accident, that it was broken when the engine left the round-house that morning, and had been broken “for some time before,” but for how long was not shown. No other defect in the engine or car was shown. No evidence was offered tending to show that there was any causal connection between the broken brake of the engine and the shock that threw plaintiff from the car, and we are unable to perceive how this defect could have contributed in the slightest degree to plaintiff’s injury. The purpose of the brake is to assist in stopping the engine, and not in putting it iñ motion. The car was standing still, and.the shock imparted to it, if any, was caused by putting the engine in motion, for which purpose it was certainly not necessary to use the brake. We are of the opinion that, in the absence of some evidence tending to show that the defective brake contributed to cause the injuries complained of, the jury was not authorized to infer from the facts in evidence that it had this effect, and hence the general charge in favor of the defendant on the first count should have been given.

The evidence did not justify the hypothesis of facts contained in charge 9, requested by defendant. It was shown that the brake was broken when the engine left the round-house on the morning of the accident, and had been broken for some time before. It was further shown that plaintiff had worked on the road for three years as a fireman, and for three weeks as a brakeman, but it was not shown that he had ever seen or worked with this engine before the day of the'accident. These facts were sufficient to authorize.thé inference that the defect was known to, or- ought to have been discovered and remedied by the defendant, but they were not sufficient to authorize an inference that plaintiff knew of the defect, and failed in a reasonable time to give information thereof to defendant. Moreover, the demurrer to the plea by which it was sought to set up this defense, had been sustained, and this issue was not, therefore, before the 'jury.. The evidence was sufficint.to justify the submission of the case to the jury on the third count, which charged negligence on the part of the engineer in causing “the car and engine to be suddenly and violently jerked or shocked.” The testimony of plaintiff that the shock was unusually violent, the hardest he had ever experienced, and was caused by the engineer unnecessarily giving the engine a sudden forward motion, was some evidence of a want of care on the part of the engineer.—Birmingham Min. R. Co. v. Wilmer, 97 Ala. 168.

There was no variance caused by the testimony of the plaintiff tending to show that the .jolt imparted to the car was caused by the engine ‘ ‘bumping” forward against the car.- While a “jerk” usually implies a movement in the direction of the power causing'it, and a “bump” implies a movement in the opposite direction, yet each would impart a shock to to the car, as charged in the complaint.

For the error pointed out, the judgment of the lower court is reversed and the cause remanded.

This opinion was prepared by Chief Justice Brickell.