Southern Railway Co. v. Shook

ANDERSON, J. The first count of the complaint attempted to set out a cause of action under subdivision 1 of the “Employer’s Liability Act” (section 1749 of the Code of 1896), which provides against a defect in the ways, works, machinery, etc.; but in attempting to describe the defect it fails to show that there was any defect, or that the intestate’s death was the result of a defect, if one existed. The placing or leaving of the box car on the side track was at most an obstruction, and in no sense constituted a defect in the ways, works, etc.—L. & N. R. R. v. Bouldin, 110 Ala. 185, 20 South. 325; K. C., M. & B. R. R. v. Burton, 97 Ala. 240, 12 South. 88; B. F. & M. R. R. v. Gross, 97 Ala. 220, 12 South. 36. The trial court erred in not sustaining the demurrer to this count. The second count of the complaint was framed under the second subdivision of the statute, and was not subject to the demurrers interposed. The fifth count of the complaint charges a failure to provide the plaintiff’s intestate with a safe place in which to discharge his duty, but shows that his death was not the result of said failure. It avers that death resulted from the starting of the train while the intestate was between it and the box car, and the demurrer to this count should have been sustained. There ' is nothing in the complaint indicating that the intestate’s death was the result of an unsafe place, or Avas due to any cause other than the moving of the train. The place Avas safe as long as the train was stationary, and the intestate would not have been killed if the train had not started AAdiile he Avas in a certain position. Since this case must be reversed, Ave deem it necessary to discuss the questions involved only so far as they relate to the good count. The second count avers that the train was started by a person in control thereof and avIio had the superintendence of same. The undisputed evidence sIioavs that the train was started for-. Avard, after it had been backed, in response to a signal [365] given by Bam Davis, the baggagemaster, and there ivas no proof that he had the superintendence or control of the train, and no facts from which it could be so inferred. Therefore the ’plaintiff failed to prove his count, or to make out a case under the second subdivision of the statute. It is true the engineer or fireman may have actually started the train, but -there is no proof that they knew of the intestate’s position at the time they did so; and, as they acted entirely upon the signal of Davis, they did not negligently start the train. /As to -whether or not the facts bring the case within the fifth subdivision, and whether or not Davis signaled the starting of the train upon the orders of the intestate, we need not decide, as that question is not before us. It is sufficient to say that the proof did not support the present complaint. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Tyson, C. J., and Dotvdeix and McClelldax, JJ., concur.