Tennessee Coal, Iron & R. R. v. Bridges , 144 Ala. 229 ( 1905 )

SIMPSON, J.

The first count of the complaint is not a count under the statute, because it does not allege that the party whose negligence is complained of was in charge'of an engine on a railroad. — Code 1896, § 1749, subsec. 5; Sloss-Sheffield Steel & Iron Co. v. Mobley, 139 Ala. 425, 36 South. 181. As a complaint at common law said count alleges that the injury resulted from the wanton, reckless, or intentional act of a fellow servant of plaintiff, but does not allege or show that the master was guilty of negligence in the selection of said servant, or in 'the orders given him, or otherwise. Consequently the demurrer to this count should have been sustained. 2 Labatt on Master and Servant, p. 2355, § 855a; Lawler v. Androscoggin R. R. Co., 62 Me. 463, 16 Am. Rep. 492. While it is true that under our decisions a master is liable for the wanton, reckle'ss, willful or intentional acts of his employe, when acting within the scope of his employment, yet that does not abrogate the principle that when the injury is to a fellow servant the master is not liable, unless the case is brought within the statute or, if the common-law liability is relied on, negligence be alleged and shown in the master himself. — 1 Labatt on Master and Servant, pp. 391, 392, § 177, and note. The Wildman Case, 119 Ala. 566, 24 South. 764; Gilliam Case, 70 Ala. 268. Highland Ave. Case, 125 Ala. 483, 28 South. 28, and the Henry Case, 139 Ala. 162, 34 South. 389, were all cases of injury to a passenger or a stranger; and the case of So. Ry. v. Moore, 128 Ala. 434, 29 South. 659, merely decides that, in a case within the statute, the fact that the injury was from the willful, wanton, reckless, or intentional wrong of the fellow servant does not prevent a recovery, the same as if it was negligence, strictly speaking. The general principle is that the “master is not liable to those in his employ for injuries resulting from the negligence, carelessness, or misconduct of a fellow servant.” — Laning v. N. Y. Central R. Co., 49 N. Y. 521, 10 Am. Rep. 417.

The demurrer to the fourth count of the complaint was improperly overruled. Said count alleges that defendant was operating a furnace in Colbert county, and was operating a locomotive along a certain railroad track, but it does not allege that the engine or car was on any railroad track. See Mobley’s Case, supra. Notwithstanding Acts 1903, p. 182, requiring these actions to be brought in the county where the injury occurred, or in the county where plaintiff resides, it. is not necessary to allege these matters in the complaint, as it is a matter of defense to be pleaded. The demurrer to the fifth count should also have been sustained. See Mobley’s Case, supra, and others referred to. The court ■finds in the record no demurrers to the sixth count of the complaint.

As there was a conflict in the evidence on the subject of giving or obeying signals to stop, and of the safety or unsafety of the position on the running board, and on the question whether or not the engineer ran the car further than the signals authorized, also as to whether plaintiff was knocked off by the car or by the body of Gay, the court properly refused to give the general charge for defendant. Charges 3 and 5, requested by the defendant, were properly refused. Where the complaint contains several counts, it is proper to refuse a charge instructing the jury, if they believe the evidence, to find for the defendant on one of the counts. — U. S. Fidelity & Guaranty Co. v. Habil, 138 Ala. 348, 35 South. 344; Bessemer Liquor Co. v. Tillman, 139 Ala. 462, 36 South. 40.

The court did not err in refusing to give charge 7, requested by defendant. In order to sustain the defense of contributory negligence, the conduct of the plaintiff must, be negligent, and must also contribute proximately. This charge does not refer it to the jury to determine whether plaintiff was negligent.' A man’s conduct may proximately contribute to his injury, yet. he may have been free from any negligence. Charge 7 was properly refused. The court properly refused to give charge 12, requested by the defendant, as there were counts in the complaint alleging willful, wanton, and reckless conduct on the part of the engineer, and the court is not prepared to say that there was no evidence from which the jury might find that said allegations were sustained. Charge 9 was properly refused, because it did not hypothesize that the running board was a place obviously dangerous.

The demurrers to pleas 2 and 3 were properly sustained, as said pleas do not sufficiently set forth any defense.

For the errors pointed out the judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

McClellan, C. J., and Tyson and Anderson, JJ., concur.