Lacy-Buek Iron Co. v. Holmes

MAYFIELD,. J. Plaintiff sues under the employer’s liability act (Code 1907, § 3910) for the wrongful death of her intestate. The complaint alleges that- intestate was before, and at the time of, his death, employed by defendant as foreman of its coal-washer crew; that the slate and refuse matter washed from the coal was by defendant’s train crew carried from the washer, in ordinary railroad cars propelled by a railroad locomotive, to a point 300 yards distant, and there dumped, so as to be out of the way of the washer and plant. The train, however, appears to have been operated by a different crew, with which intestate had no connection. Intestate’s crew loaded and unloaded these cars, but [101] had nothing to do with the operation of the train. It appears that, in going from the washer to the dump to unload, intestate’s crew usually rode on the loaded cars, though it was optional with them whether they would ride or walk. Intestate, while riding on one of these cars from the -washer to the dump was knocked off the car by coming in contact with a brace or beam which extended partly across the track, at a height of about 5 1-2 feet above the tops of the gondola cars in which the material or matter was loaded. The main acts of negligence relied upon for a recovery were those of the engineer in charge of the train on which intestate was riding. The first error insisted upon is the overruling of defendant’s demurrer to the second count of the complaint. This count declares under subdivision 5 of the employer’s liability act. The negligence or wrong relied upon is alleged to have been that of the engineer in charge of the train, in that he “negligently failed to ring the bell or blow the whistle on said locomotive, or to otherwise give warning that he was ready and about to start said cars.” This count is insufficient in that it failed to show a duty on the part of the engineer to warn the intestate that he was ready to move the train. It is also bad in that it alleges in the alternative that the engineer failed to “ring the bell” or “blow the whistle,, or “to otherwise give warning.” This was clearly an attempt to charge the engineer with a failure to perform the statutory duties required by section 5473 (3440) of the Code of 1907. This section of the Code has been held by this court not to apply to cases like the one under consideration. It was intended to conserve the safety of the public — those having the right and likely to be upon the right of way of the railroad. Binging the bell or blowing the whis [102] tie could be of no possible service to those on board the cars, who are there for the purpose for which and in the manner that defendant was on the train in question, as shown by this complaint. — Martin’s Case, 138 Ala. 531, 36 South. 426. We do not mean to decide that facts could not be alleged which would impose a duty upon the engineer to have warned intestate of the starting of the train, and make the defendant liable for the injury the result of his failure to perform that duty. But such facts are not alleged or shown in this complaint, and the statute referred to does not apply to the facts which are set forth therein. The count should state facts out of which duty springs, and allege a failure to perform that duty and an injury in consequence thereof. Its sufficiency must be determined on the facts as alleged, from which the legal duty is deduced. It should show a duty on the part of defendant to do or not to do that of which it complains. — Chewning’s Case, 93 Ala. 24, 9 South. 458; L. & N. R. R. Co. v. Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620; Stanton’s Case, 91 Ala. 382, 8 South. 798; Hall’s Case, 87 Ala. 708, 6 South. 277, 4 L. R. A. 710, 13 Am. St. Rep. 84. We deem it unnecessary to pass upon other assignments of error. What is said above will probably be a sufficient guide on another trial. The judgment is reversed, and the cause remanded. Reversed and remanded. Simpson, Anderson, and McClellan, JJ., Concur.