Birmingham Railway & Electric Co. v. Allen

COLEMAN, J. The action is to recover damages for personal injuries. It is much the better practice, when a complaint is amended, to set out in full the complaint or count as amended, unless the amendment is of such a character that it may be readily made by a mere interlineation. We have, however, never construed the statute allowing amendments so strictly as to hold that the pleader may not, by reference to one count in the complaint, adopt a certain specified portion of another, and add to it averments, so as to constitute another and separate count. The complaint is subject to another objection. As originally found, there was but a single count. The court sustained a demurrer to the complaint. The effect of the judgment sustaining the demurrer was to annul and hold for naught the complaint in its then condition. Until amended, or a new complaint filed, there was no 1st count before the court. The complaint was amended by adding thereto a [366] second, third, fourth, fifth and sixth count. Each of these amendatory counts refers to and adopts as a part of these respective counts a specified portion of the 1st or preceding counts. We will consider the suificiency of the counts upon which the trial was had. The third count adopted a portion of the first and the whole of the second, with the exception of a single sentence. Written out consecutively in full it reads as follows: “The plaintiff claims of the defendant fifteen thousand dollars, for that heretofore, on, towit, 1st day of July, 1891, defendant was operating, running, managing and controlling a certain railway known as the East Lake Dummy Line, running from Birmingham in an easterly direction to and by Eritchman’s Garden, to East Lake, Alabama. That on said day plaintiff was in the service or employment of defendant in the capacity of conductor on a certain train, composed of a steam locomotive engine and certain cars, which were then and there being run over and along said railway by defendant, that when said train reached a point on said railway at or near said Eritchman’s Garden, it ran from the main line into a switch or siding, and plaintiff by reason thereof was thrown from one of said cars, on which car plaintiff then and there was in the performance of his duty as conductor as aforesaid, and plaintiff’s leg was fractured, his hip, shoulder and head and various other parts bruised and lacerated, and plaintiff was otherwise seriously and permanently injured.. By reason of his said injuries plaintiff suffered and continues to suffer great mental and physical pain and loss of time, and plaintiff was rendered less able to work and to earn money, and was put to great expense for medicine, medical attention, care and nursing, and plaintiff avers that his said injuries are permanent; and plaintiff further avers that said accident and plaintiff’s said injuries were caused by reason of defects in the condition of the ways, works, machinery or plant connected with or used in said business of defendant, viz., the switch from the main line into the siding onto which said train ran as aforesaid was negligently allowed to be and remain without a lock or other proper and sufficient means of fastening the same, and the same was not kept sufficiently locked or fastened. The said defects arose from, and had not been discovered or remedied owing to the negligence of defendant, or of some person in the service of defendant and entrusted by it with the duty of seeing that said ways, works, machinery or plant were in proper condition.” [367] The words,. “and the same was not kept sufficiently-looked or fastened,” may he stricken out as mere surplus-age and enough remains to constitute a good count. We do not think these words, in the connection used, indicate that the plaintiff sought a recovery for negligence in not having the switch locked or fastened, hut rather that it was not locked or fastened in consequence of the allegation that there was neither lock nor fastening to the switch. Whether a lock or proper fastening was such a component part of a switch, as that the failure to provide it rendered the company liable for injuries resulting therefrom, would depend upon the proof. Upon this question the .rule is clearly laid down in L. & N. R. R. Co. v. Hall, 91 Ala., on page 121, where, in reference to “ whipping straps,” the court said : “Is it so manifestly serviceable as to command the consensus of intelligent railroad men so generally, as that it cannot be reasonably ignored or disregarded ? Or, is its utility disbelieved and disallowed in the management of many well governed and well regulated railroads ? If- this question be debatable and skilled railroad men honestly differ in judgment as to the utility of this or any other cautionary appliance, and differ to such extent as that many well regulated railroads abstain from their use, then such abstraction is not legal negligence.” In the case of Hall, the principle was applied to roads commonly designated railroads. In the present case the road is designated and distinguished as a dummy road, but there can be no difference in the application of the principle If it be shown that the omission to provide a lock or proper fastening for the switch was culpable negligence, and the negligence arose as averred in the complaint, and the switch was displaced by an intermeddler, such displacement would not be necessarily such an intervention of an independent intervening cause, as to constitute the sole proximate cause of the injury. The evident purpose of the use of locks or fastenings is to make the switch reasonably safe against the interference of, or displacement by trespassers, as well as accidental causes. In such cases ordinarily the neglect of the defendant in failing to provide locks or fastenings, would be regarded at least as jointly contributing to the result. The fourth count is clearly defective. The averment that the switch “ was negligently allowed to be open,” does not show a defect in the ways, works, and machinery of the defendant corporation, neither has such an averment any legal or proper connection, with the person whose duty it is to [368] see that the ways, works and machinery were in proper condition. This count demonstrates the danger and confusion likely to arise in pleading by adopting portions of other counts by a mere reference to them. The safe practice is to draw the counts in full, as one entirety. With the exception of the defect pointed out in another part or this opinion, the other counts are sufficient, and the demurrers properly overruled. The evidence shows without dispute that plaintiff had been in the employ of the defendant as conductor for a year. He testified himself “ that the switch had no light or target on it, and had not since I had been running on the road. There never had been a lock or means of fastening on it since I went on the road, a period of twelve months. I had been running on the road for twelve months.” In the case of The Columbus & Western R. R. Co. v. Bradford, 86 Ala. 574, the court used this language : “ Contributory negligence, which would defeat an action, might have consisted of a failure on the part of the plaintiff, either to reasonably give notice of the defect in appliances used in his employment, or of the negligence of his superiors, if known to him, which produced the injury; or of a failure, after having given such notice, to quit the service to which such defect or negligence was incident, after a reasonable time had elapsed for its correction.” In Georgia Pacific v. Davis, 92 Ala. 300, the principle is thus clearly stated : “The duty of the company to its employes is to provide a roadway in all respects reasonably safe for the running of its trains, and the performance of the functions imposed upon them by the exigencies of the service, and they have the right to assume without inquiry or investigation that this duty has been discharged. The onus of inquiry or investigation is not upon them. If, as matter of fact, they know of unsafe conditions in any of these particulars, and continue in the service after the lapse of a reasonable time for the defects to be remedied or removed, they assume this additional risk, though originally not incident to their employment.” Many cases are cited in support of the proposition, and it is manifestly just. If .it be conceded that the failure to provide a lock or proper fastening for the switch be a culpable defect, there are no facts in the present record which relieve the plaintiff from being held guilty of contributory negligence under the influence of the foregoing principles. Reversed and remanded.