Alabama Great Southern Ry. v. Brock

SIMPSON, J. This action by the appellee is for damages on account of injuries claimed to have been received by the plaintiff as an employe of the defendant. All of the counts of the complaint were eliminated by demurrer, except the first; and the first assignment of error insisted on is to the action of the court in overruling demurrers to said count. The gravamen of the demurrer insisted on in argument is that it does not sufficiently set out the facts, showing in what consisted the negligence complained of. While it is true that, under .our decisions, greater particularity is required in the allegations of contributory negligence by the defendant than is required of the plaintiff in alleging negligence, yet it has been established by the decisions of this court that complaints alleging negligence in the general terms used in this count are sufficient, and the court is not disposed to overrule them. — L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620; Postal Tel. Co. v. Jones, 133 Ala. 226; L. & N. R. R. Co. v. Jones, 83 Ala. 376, 3 South. 902; McNamara et al. v. Logan, 100 Ala. 187, 14 South. 175; B. R., L. & P. Co. v. Moore, 15 Ala. 327, 43 South. 482; Ga. Pac. Ry. Co. v. Davis, 92 Ala. 307, 9 South. 252, 25 Am. St. Rep. 47; Mary Lee Coal & R. Co. v. Chambliss, 97 Ala. 174, 11 South. 897; H. A. & B. R. R. Co. v. Miller, 120 Ala. 535, 544, 24 South. 955. The complaint follows the language of the statute, and is not subject to the other ground of demurrer insisted on, towit, that it does not allege that the engineer-was acting within the line and scope of his employment. —Woodward, Iron Co. v. Herndon, Adm’r., 114 Ala. 191, 214, 21 South. 430; Lampkin v. L. & N. R. R. Co., 106 Ala. 287, 291, 17 South. 448. It is true that the margin is very close between these cases and that of Daniels v. [356] Carney, 148 Ala. 81, 42 South. 452, 7 L. R. A. (N. S) 920, 121 Am. St. Rep. 34; and the remarks of counsel for appellant are not without force. The count in the last-mentioned case is not set out in full, so that we cannot say exactly what its averments were; but the distinction seems to be based on the principle that subdivision 5 of section 3910 of the Code of 1907 is so worded as to justify the inference that the legislature considered that “a person in the service or employment of the master, who has the charge or control of an engine,” is presumed to be acting within the scope and line of his employment. In the case of A. G. S. R. v. Williams, 140 Ala. 230, 236, 37 South. 255, 258, the court did not follow the language of the statute, but left it “to be inferred that B. J. was an engineer having control of said engine.” The remark of the court, in A. G. S. R. Co. v. Sanders, 145 Ala. 449, 458, 40 South. 402, besides being merely a “maybe,” relates to a count which is not set out in the case, and Ave cannot say just what its allegations were. There was no error in the giving of that part of the oral charge excepted to (assignment of error No. 2). The servant who is employed to go to a certain place and do a. certain work, Avko is transferred to and from said place by the employer (his pay being continued all the time), is employed in and about that work from the time he leaves until he returns. — 2 Labatt’s Master & Servant, 1830; Ryan v. Cumberland Valley R. R. Co., 23 Pa. 384; Russell v. Hudson Riv. R. Co., 17 N. Y. 134; Bowles v. Ind. R. R. Co., 27 Ind. App. 672, 62 N. E. 94, 87 Am. St. Rep. 279; Whatley, Adm’r., v. Zenida Coal Co., 122 Ala. 118, 129, 130, 26 South. 124; Va. Bridge & I. Co. v. Jordan, 143 Ala. 603, 610, 42 South. 73; Abell v. Western Md. R. R., 63 Md. 433; Ewald v. Chicago & N. W. Ry., 70 Wis. 420, 36 N. W. 12, 591, 5 Am. St. Rep. [357] 178. As said in the Bowles Case, supra: “The transportation of the laborers was one of the means by which the employer produced the doing of the work.” The allegation of the court is that “said injuries were proximately caused by the negligence of the engineer” who had charge of the colliding train. In order to recover, the burden rested on the plaintiff to introduce some evidence tending to show negligence on the part of said engineer, or from which the jury could infer such negligence. — Railroad Co. v. Thomas, 42 Ala. 672; Smoot v. Railroad Co., 67 Ala. 13; Railroad Co. v. Allen’s Adm’rs 78 Ala. 494; Railroad, Co. v. Davis, 91 Ala. 487, 8 South. 552; Tuck v. Railroad Co., 98 Ala. 150, 12 South. 168; Mary Lee, etc., Co. v. Chambliss, 97 Ala. 171, 11 South. 897; Bromley v. B. M. R. R. Co., 95 Ala. 397, 11 South. 341; L. & N. R. R. Co. v. Binion, 98 Ala. 570, 14 South. 619; L. & N. R. R. Co. v. Campbell, 97 Ala. 147, 12 South. 574. The evidence shows merely that there was a collision, by the train running into the rear of the wrecking train, which had been moving in the same direction, but had stopped for “a very short time” — “a few seconds.” It was in the night, and there is no proof that the wrecking train had any light, or had given any sign of its stopping, or that it had stopped long enough to be seen in time for the other train to stop. In fact, there was no evidence tending to show any negligence on the part of the engineer of the colliding train. Consequently the court erred in refusing to give the general charge in favor of the defendant. The judgment of the court is reversed, and the cause remanded. Dowdell, C. J., and Anderson and Mayfield, JJ., concur.