Central of Ga. Ry. Co. v. Alexander , 144 Ala. 257 ( 1906 )

SIMPSON, J.

This is an action of damages for the death of Will Hinesley, who was -an employe of the defendant (appellant). The first contention of appellant is that the court erred in overruling appellant’s demurrer to the complaint, on the ground that “said complaint seeks to recover for two distinct causes of action, to- wit, a liability under the statute for the death of plaintiff’s intestate resulting from a defect in the ways, works- or machinery; and, second, for the death of plaintiff’s intestate, as a result of permitting a third person to erect, a nuisance.” This court holds that if the defendant-company permitted another company to erect a bridge over its track, and continued to operate its trains- under said bridge, a defect, in said bridge would constitute a defect in the ways of defendant. Consequently there were not two distinct causes' of action, and the demurrer to the complaint as a whole was properly overruled.

The demurrers to counts 6, 8, and 9 were properly overruled. Said counts- are sufficient, under the decisions of this court. — Ala. Great Sou. Ry. v. Davis, 119 Ala. 573, 24 South. 862. The demurrer to the seventh count was properly overruled. While it is true that this court has declared in several cases that- the court cannot affirm as a matter of law tha-t the failure to place whipping straps on a bridge is negligence, yet, on the other hand, the court cannot affirm as- a matter of law that it is not negligence; and as this count alleged that it was negligence in this case, and that the death of intestate resulted from it, it was a proper matter for consideration.

There was no merit in the third assignment of error. The amount, that the decedent was being paid, at the time of his death was a fair criterion as to his earning capacity. It was not necessary to prove the contract between him and the railway company.

Referring tu the fourth assignment of error: under the decisions of this court the measure of damages recoverable by the administrator of an employe is the pecuniary injury sustained by the persons to whose benefit the recovery inures, and for the purpose of ascertaining the probable pecuniary injury it is proper to inquire into the habits of economy of the decedent, what disposition he made of his earnings, etc., so as to ascertain whether he would accumulate anything, so that the distributees of his estate when he died would be likely to realize any thing out of his estate. If he spent all of his earnings on himself, or on other objects than the support of said distributees, the measure of the recovery would be nominal, on the count under the employer’s liability act. If he spent a part of it in such ways and saved a’ part, these would be material inquiries in ascertaining the measure of damages. Hence the. testimony here objected to was proper. — L. & N. R. R. Co. v. Jones, 130 Ala. 456, 30 South. 586; L. & N. R. R. Co. v. Morgan, 114 Ala. 449, 458, 22 South. 20; Bromley v. Birmingham Min. R. Co., 95 Ala. 397, 406, 11 South. 341; L. & N. R. R. Co. v. Trammell, 93 Ala. 351, 354, 9 South. 870; James v. Richmond & D. R. Co., 92 Ala. 231, 235, 236, 9 South. 335; L. & N. R. R. Co. v. Orr, 91 Ala. 548, 552, 553, 8 South. 360. His grandmother not being one of the distributees, as he had a brother and sister, it could be no injury to defendant, to show that he appropriated a portion of all of his wages to her support.

There was no- error in admitting the testimony of Wood (assignments 5 and 6.) The witness’ testimony did not show, as contended, that he. did not know, but only that the height of bos cars varied from 11 to 13 feet.

The court committed no error in refusing charges as follows: Charges numbered 1, 2, 3, 4, 5, 6, 7, 8, and 9. Bessemer Liquor Co. v. Tillman v. 139 Ala. 462, 36 South. 40. There was no error in the refusal to give charges F. and G. They were in the nature of arguments. Charge M. was properly refused, as shown in a previous paragraph of this opinion.

There was no error in overruling the motion for a new trial.

The judgment of the court is affirmed.

McClellan, C. J., and Dowdell and Denson, JJ., concur.