Pear v. Cedar Creek Mill Co.

SIMPSON, J. This suit is by the appellant for the death of his intestate, who, it is alleged, belonged to a “construction g;ang” of defendant, and was killed by the car (on which he was) coming against the engine with such force as to cause said intestate to fall. The counts are all under the employer’s liability act, except one (count A), which alleges that the defendant was negligent in not providing some person to give signals to the engineer. There is no evidence which tends to support this count, nor is there any evidence which has tendency to support either of the other counts, except .those which allege negligence in the person in charge of the switch. According to the evidence, the plaintiff, with several others, was on a car which was loaded with steel rails and cross-ties. An attempt was made to' make a running switch, the intention being for the car to be detached from the engine, and, when the engine had passed the switch, for the switch to be thrown so that the car would go on another track; but it went on, on the same track with the engine, and thus came in contact with it, and one witness states that said car failed to go on the other track “by them not throwing the switch in •time.” The evidence shows that the defendant was running a railroad, and, while its name indicates that that [265] is not its principal business, jet there is no evidence distinctly showing that the defendant is engaged in any other business than that of running a railroad. One of the witnesses did say that “Jim had no connection with the railroad; he belonged to the construction gang.” Yet other witnesses state that the intestate and others were taking up the steel rails and cross-ties at one place, and putting them down at another; that the construction gang took up and put down track with rails- and cross-ties; that the construction gang went along with the engine all of the time; that the engine stayed with them until the cars were loaded, and then the gang went along with the cars and unloaded them. Hence we cannot say that the intestate was not employed in and about the railroad, within the meaning of Ala. Steel & Wire Co. v. Griffin, 149 Ala. 423, 42 South. 1034, 1038, and Woodward Iron Co. v. Curl, 153 Ala. 215, 44 South. 969, 974. It is true that several witnesses testify that the person in charge told all of those who were on the car in question to get off before the switch was made, and that all of them except the intestate did get off; but those who were with him testify that they did not hear said order, and that they got off to get their dinner buckets. Under this testimony we cannot say, as a matter of law, that intestate heard the order, and was riding on the car in disobedience of orders, or was guilty of contributory negligence. For the reasons given, we think it was a matter for the jury to consider whether the iutestate was engaged in aucl about the business of the railroad, and whether his death was caused by the negligence of the person in charge of the switch. Consequently it was error to give the general charge in favor of the defendant. [266] The judgment of the court is reversed, and the cause remanded. Tyson, C. J., and Denson and McClellan, JJ., concur.