Western Ry. v. Russell

TYSON, J. This action is by the personal representative of Thomas J. Russell, deceased, to recover damages for alleged negligence on the part of defendant resulting-in his death. The complaint as originally filed comprized six counts, and nine others were added by amendment. Counts eight and ten were withdrawn -and the trial was had on the remaining counts. To each count a demurrer was interposed which was overruled by the trial court. These several rulings are assigned as error. There is however no such insistence in brief of appellant’s counsel on these assignments of error as devolves upon us the duty of passing upon them. All that is said is that they are insisted on, and we are referred to the assignments of error, and the demurrers as set forth in the record. This amounts to no insistence.' — Williams v. Spraggins, 102 Ala. 424, 431, 15 South. 247; Ward v. Hood, 124 Ala. 574, 27 South. 245; Sylacauga Land Co. v. Hendrix, 103 Ala. 254; 15 South. 594; 2 Mayfield’s Dig. p. 133 § 77, et seq. We have, however, examined each count of the complaint upon which the case was tried and find that each states a cause of action. In some of the counts the negligence is alleged in general terms to have consisted in the failure to maintain the track in proper condition for the passage of trains; in others, that the culvert was defectively constructed; in others, the defect in the construe — 151 — tion of the culvert is-stated more specifically to have consisted in the fact that it was too small to carry off the water that would accumulate during heavy rains; and in others that the materials of which the culvert was constructed had become weakened by decay. There were also two counts (7th and -8th) predicated on the alleged failure of the servants of defendant to give warning to plaintiff's intestate of the conditions as they existed at the time of the disaster. The defendant filed originally twelve (12'' pleas and a like number were added by amendment. Of course, plea one (1) was the general issue, and 2, 3, 4, 5, 13, 15 and 16, to which demurrers were sustained, set up in different forms that the washing awav of the culvert and the death of Bussell resulted from a rainfall so severe and unexampled in character as to amount to the “Act of God.” Without considering the various grounds of demurrer interposed to each of these pleas, suffice it to say that, if they presented a defense to the -action and therefore the court erred in sustaining the demurrer, the defendant could have had the benefit of each of them under the plea of the general issue. The rulings must, therefore, be regarded as in-ocuous. — Hall v. Sou. Ry. Co., 131 Ala. 161, 32 South. 603. But aside from this, they were clearly no answer to the 7th count. Pleas 7, 8, 9,11, 21, 22 and 23 invoke either the defense of contributory negligence or that plaintiff’s intestate assumed the risk of the injury which caused his death. Plea 7 is as follows: “That before plaintiff’s intestate sustained the injury complained of as alleged in said complaint, and while in charge of said train he was notified by defendant that there had been heavy rains along the line of defendant’s railway, and was cautioned to look out -for high water at all low places and waterways; that notwithstanding said notification and caution and in disregard thereof, the said intestate so carelessly and negligently operated said engine and train as to run into a wasli-out, which could have been avoided by the use of reasonable care and diligence; wherefore defendant avers-the injury complained of was the result of the careless and negligent conduct of plaintiff’s intestate in disregard of such notice and caution in operating said en — 152 — gine and train thereby contributing to' his own injury and that such careless and negligent conduct was the proximate cause of the injury complained of.” .Speaking of the duties railway companies owe their employes operating their trains, we said in Northern Ala. Ry. Co. v. Shea, 37 So. Rep. 796. “Trainmen do not assume the risk of defective track conditions. They have a right to assume that the track is safe. It is not their duty but the duty of their employers to keep it in proper condition. The acquaintance which trainmen are required to have with the premises, and to acquire which they are carried over the road on trains before being put in charge of trains', is more an acquaintance with the line, so to say, than with the track. They must know, and in the way indicated they are taught the conditions of the line in respect of stations, stopping places, switches, grades, curves, and distances. With these things they have to do; but not with the track itself in respect of its condition and maintenance. This plaintiff, a brakeman, was not charged with knowledge of the defects in this track, but, on the contrary, had a right to assume without investigation that the track was in good and safe condition.” The same principle was also declared in L. & N. R. R. Co. v. Baker, 106 Ala. 624, 17 South. 452; Union Pac. Ry. Co. v. O’Brien, 161 U. S. 457, 16 Sup. Ct. 618. For a failure to discharge these duties, the defendant could not relieve itself by any such general notification or caution as is alleged in the plea. In Dresser on Employer’s Liability Act, § 99, it is said: “The master does not discharge the duty cast upon him by giving a general warning of danger but he is bound so to point out and instruct about the risk that the servant may appreciate what he is to encounter and know how he may avoid it. Mere information in advance that the service generally or a particular thing connected with it was dangerous might give him no adequate notice or understanding of the kind and degree of danger which would necessarily attend the actual performance of his work.” It is true the statement quoted relates to the duty imposed upon the master to .give warning of latent dangers or to inexperienced servants in respect to trainmen who — 153 — liad no duties to perform, regarding the proper maintenance of the track. It is not. alleged that the engineer was informed of the dangerous conditions existing at the culvert, or that, had he kept a lookout, he could have ascertained those conditions in time to have averted the injury. The averment that he so carelessly and negligently operated his engine and train as to run into a washout, which could have been avoided by the use of ordinary care and diligence, is the mere statement of the conclusion' of the pleader and is not permissible in pleading contributory negligeence, where the facts must be averred. — S. R. Co. v. Shelton, 136 Ala. 191, 34 South. 194; R. R. Co. v. Herndon, 100 Ala. 451, 14 South. 287; Markee v. L. & N. R. R. Co., 103 Ala. 160, 15 South 511. The court did not err in sustaining the'demurrer. Plea 8 was substantially the same as 7, with the added averment “That notwithstanding said notification and caution and in disregard thereof .the said intestate carelessly and negligently ran his said train at a rapid rate of speed without ascertaining the condition of the road ahead of him which he could have done by the use of prper care and diligence,” etc. It will be seen that the plea is open to the same criticism as the 7th. It was not the duty of the engineer, on any such general notice, to do more in the way of examination of the roadways or waterways than could be done consistenty with, the performance of his own duties as engineer; and there is no averment that, consistently with the performance of his own duties, he could have discovered the situation at the point where he wras injured. Plea 9 was the same as 7 and 8, with the added averment that the deceased, “well knowing the location of the place where it is alleged he was injured, and that it wms a waterway, negligently and carelessly failed, be. fore attempting to run his said engine and train there-over, to ascertain the condition of the track or roadway over said waterway.” The added averment falls far short of correcting the defects pointed out in the former pleas. The only fact added as imposing upon the engineer the duty of exam — 154 — ing the road at the place where he was injured, is “that he well knew the locality.” There is no averment that he knew or was informed of any conditions existing at the place, at the time, that required greater care on his part than at other waterways. Plea 11 invokes as a defense, the assumption of risk. It is alleged “That the injury complained of occurred immediately after a very heavy and excessive fall of rain on the line of defendant’s railway; that plaintiff’s intestate knew this fact and also knew the condition of defendant’s roadway at said place, and with such knowledge1 voluntarily undertook to- operate said engine- and train at said time and place and thereby assumed the risk of the injury which resulted in his death.” :Whether • deceased knew of the condition of defendant’s roadway at said place-, as those conditions existed at the time he attempted to cross, the plea does- not aver. Construing its averment most strongly against the-pleader, he possessed only such knowledge of its conditions as he had previously acquired. It does not appear what “condition” deceased knew, and there is an evident failure to allege that he knew of .any conditions existing at the time that made it dangerous to cross with his engine and train. Before it could be said he assumed the risk, it must appear either that he was properly warned of the clanger or that it was open and patent.— L. & N. R. R. Co. v. Stutts, 105 Ala. 368, 17 South. 29; L & N. R. R. Co. v. Baker, 106 Ala. 624, 17 South. 452; A. G. S. R. R. Co. v. Brooks, 135 Ala. 401, 33 South. 181, and authorities there cited. Plea 21 alleges that “Plaintiff’s intestate was guilty of contributory negligence in that before he had reached the place where he was injured he was notified by the defendant that there had been very heavy rains at the place where the injury occurred and cautioned him to lookout fox- high -water at said place; that notwithstanding said notification and caution which was given in ample time for said intestate to have acted thereon, and in disregard 'thereof, he, plaintiff’s intestate, with a full knowledge of the location where said injury occurred, negligently failed to approach said place with caution but negligently and carelessly ran his- engine and train — 155 — over tlie same at a liigh rate of speed,” etc. It will be 'observed it is not alleged that plaintiff’s intestate failed “To look out for high water at said place,” er that, if he had done so, he could have seen the conditions that made it obviously dangerous to- attempt to ores’!. The averment that he had “Full knowledge of the location” is by no means the equivalent of an allegation that he knew the culvert had been washed out or the'dangerous condition caused by the stoppage of the water or that he could have discovered the danger by the exercise of due care, and the failure to make these necessary averments is not remedied by the statement' that deceased, “Negligently and recklessly ran his engine and train over the same at a high rate of speed;” — a mere conclusion of the pleader which, as we have said above, is an insufficient averment in pleas of this character. The 22nd plea sets up contributory negligence and is substantially the same as the 7th and 8th. It avers the same notification that heavy rains had fallen along the line of the defendant’s road, and the same caution to look out for high water at all low places and waterways. It is alleged that notwithstanding said notification and caution, “Said intestate carelessly and negligently ran his said engine and train at a rapid rate of speed without ascertaining the condition of the road ahead of him, which he could have done by the use of the proper care and diligence and which it was his duty to do before attempting to pass over the place where the injury occurred. Wherefore,” etc. What we have said in respect of the 7th and 8th pleas is applicable to this- one. Furthermore, it is not alleged that he failed to keep a lookout, cr that he could have maintained such a lookout consistently with his other and primary duties as would have enabled him to ascertain the conditions then existing; and finally, the breach of duty is alleged by way of conclusion merely. The defense of the assumption of the risk was invoked by the' 23rd plea, which alleged that “The injury occurred immediately after a very heavy and excessive fall of rain on the line of defendant’s railway and that plaintiff’s intestate was notified in ample time by defendant of this fact, and further, that plaintiff’s intestate was cau — 156 — tioned to lookout for Mgk. water at said place; and defendant avers that it was the duty of plaintiff’s intestate after receiving said notice not to have crossed said place without ascertaining that it was safe and notwithstanding this notice and duty, and with such knowledge on his part, voluntarily undertook to run said engine and train of cars at a rapid rate of speed over said place and thereby assumed the^ risk of injury which resulted in liis death.” This plea, it is evident, is open to the objections urged to all the others of the same character. There are no facts stated showing that the danger was open to ordinary observation and known to deceased, — necessary allegations before deceased could be said to have assumed the risk or even that he failed to keep a lookout. As a plea of the assumpsion of risk, it is nowhere averred that the danger was obvious. There is no distinct averment in either of the pleas .that plaintiff’s intestate knew of'the dangerous conditions existing at the culvert when he attempted to pass, or that they were of so obvious a character that he could, consistently with the performance of his duties, have ascertained these conditions. The demurrer to plea 10 was properly sustained. The plea alleges that the injury complained of was the result of a mere accident incident to the work in which plaintiff’s intestate was engaged. It is sufficient to say that, if the facts were true as stated, the defendant was not guilty of the negligence charged in the complaint and denied by the plea of the general issue. — Going v. Steel & Wire Co., (Ala.) 37 So. Rep. 784; Milligan v. Pollard, 112 Ala. 465, 20 South. 620. The averments of plea 12 are substantially the same as in pleas 7 and 8, with the added statement that as the result of the negligence of plaintiff’s intestate, the defendant sustained damage to its cars, etc., in a sum stated, which the plaintiff offers to setoff against the demands sued for. As we have already shown, the averments of the plea do not sustain the charge of contributory negligence; but if it were othenvise, the damages alleged to have been sustained could not be set off in an action of this character, where it is sought to recover damages for inju — 157 — ries alleged to have resulted from defendant’s negligence. Code § 27. In each of the cases cited to the proposition hy appellant, the action was in assumpsit. Plea “A” was interposed to the 7th count of the complaint, which alleges the negligent failure of the defendant to give warning to plaintiff’s intestate of the dangerous conditions existing at the place where the injury occurred. The plea alleges that defendant’s servants did not know of those conditions in time to give such warning. Whether the defendant had made any efforts to inform itself, does not appear, and this failure to allege such effort was one of the grounds of demurrer interposed. Robinson Mining Co. v. Tolbert, 132 Ala. 462, 31 South. 519. Moreover, if the defendant was guilty of no negligence in failing to warn plaintiff’s intestate, that fact could have been shown on issue joined to the 7th count of the complaint, which alleged-such negligent failure. What has been said disposes of the rulings upon the pleadings. The remaining assignments of error are predicated upon rulings which must be shown by a bill of exceptions. The paper in the record, purporting to be a bill of exceptions, must be disregarded, because the order of April 29, 1903, extending the time for its signing was made by the court, and not by the judge. — Arnett v. Western Ry. of Ala. (Ala.) 34 South. 997; Scott v. State, (Ala.) 37 So. Rep. 366. Affirmed. ■McClellan, C. J., Simpson and Anderson, JJ., concurring.