Broslin v. Kansas City, Memphis & Birmingham Railroad

HEAD, J. — This is an action for personal injuries. It is very clear the first count of the complaint shows no such relation between the plaintiff and defendant as imposed liability upon the defendant for the injury complained of. The plaintiff was in the employ of the Turner Coal Co., who was engaged in getting and shipping coal on the line of the defendant’s road. There was at Palos, where the Coal Company did business, a side or spur track'against which was the Coal Company’s “tipple,” used for loading coal into the cars. The defendant would put cars on this side track near the “tipple” to be loaded. On the occasion of the injury the plaintiff was riding on one of these empty cars, a number of which were being moved on the side track to to be stopped at the “tipple.” The plaintiff alleged that it was his duty to be and remain upon said empty cars while they were being switched,' and to apply brakes to stop them under the “tipple”, where they were to be loaded with coal; and while in the discharge of this duty he applied the brakes and that the brake he attempted to turn was defective, and instead of stopping the cars hurled him upon the track and the wheels passed over his leg, whereby he lost his leg. The duty of the plaintiff, it must be taken, arose out of his contract with his employer, for there is no allegation that there was ever any agreement, at all, with the defendant either by the plaintiff or the Coal Company, whereby it became plaintiff’s duty to be and remain upon the cars and apply the brakes, and there is nothing in the count from which the slightest implication could arise that the defendant agreed on, assented to or even knew of such an arrangement or duty; and for aught that appears neither the defendant nor its servants knew that the plaintiff was upon the car in the performance of any such duties at the time of the injury. If it be supposed that the servants saw him there, there is nothing alleged imposing a duty upon them to treat him otherwise than as a trespasser. When the plaintiff’s supposed duty to be there had its origin, or whether he had ever been there before the occasion of his injury does not appear; in fact [403] there is nothing to show that the defendant or its servants knew, or ought to have known, anything about' the plaintiff or his relations to the Coal Company, or his duties growing out of those relations. He was, therefore, in no position to complain of the defective brake. The second, third and seventh counts are infected with the same infirmities. The demurrers to these counts were properly sustained. There were several amendments to the first and third counts made on a separate paper directing the insertion of certain paragraphs between certain words as they occur in the original counts. The abstract so presents the original counts that it is impossible for us to know where these insertions should be made. ¥e cannot, therefore, consider these amendments. Those amendments which are required to be added at the end of the first, second, third and fourth counts may be considered, but in doing so we find so far as the first, second and third counts are concerned they add nothing to their value. The fourth count, like the first three shows the relation of the plaintiff to the defendant was that of a stranger, but there are allegations which raise the question whether or not there was such knowledge and consent on the part of the defendant as implied invitation to the plaintiff, by the defendant, in the latter’s interest, in the operation of its business, as a common carrier, as justified the plaintiff’s presence upon the cars, and imposed a duty on the defendant to furnish to him reasonably safe appliances. There is no pretense in the fourth count that the plaintiff was in the employment of the defendant, hence that count can have no reference to the Employer’s Liability Act; yet the only ground of demurrer assigned to this count is that it is not alleged that the plaintiff did not know of the defect in the brake, or that he gave information of the same, if he knew it, as required by section 2590 of the Code. It is obvious that this ground of demurrer is entirely out. of place. The court erred in sustaining it. The fifth count is under the Employer’s Liability Act, alleging that plaintiff was in the employ of defendant, and counting on the negligence of defendant’s servants having the management of the engine and cars in running and switching said cars with a defective brake on the spur or side track where the plaintiff was engaged [404] in the performance of his duties. The only ground of demurrer assigned to this count is that above noted to the fourth count. We decided long ago that it was unnecessary for the plaintiff to negative in the complaint that he had knowledge of the defect or negligence causing the injury. That is a matter of contributory negligence, which must be brought forward by plea. — Columbus & Western R’y. Co. v. Bradford, 86 Ala. 573, and authorities there cited. We cannot pass upon the real merits of the fourth and fifth counts for the want of grounds of demurrer testing them. Reversed and remanded.