St. Louis & S. F. R. R. v. Phillips , 165 Ala. 504 ( 1910 )

EVANS, J.

— Appellee brought suit against appellant for damages for personal injuries. Appellee was a locomotive fireman in the employ .of appellant in Walker, county, Ala., at the time of the injury complained of. The suit was brought under section 1749 of the Code of 1896. There are 30 assignments of error by appellant to the rulings of the court below. In his brief appellant does not insist upon assignments 1, 2, 3 (3a), 4, 6, 7, 8, 9, 10, 11, 12,' 13, 14, 15, 16, 17; and 22. We. therefore, treat those assignments as waived.

The demurrer to first count was properly overruled.. Said count, as to its general allegation of defect, was. in the language of the statute under which the. suit was brought; and was, therefore, sufficient. After the general allegations of defect, in. accordance with the language of the statute, the -particular defect counted up-, on is alleged as follows: “A defect in the roadbed .or. track of defendant railroad.” Under the authority of Jackson v. Cunningham, 141 Ala. 206, 37 South. 445, that was a sufficient allegation of the particular defect. The negligence counted upon in said count was as follows, after naming the defect: “Which defect the defendant had negligently failed to remedy.” This allegation of negligence is one of several acts of negligence, which the statute, by its terms, makes actionable. It was, therefore, sufficient. The plaintiff might have alleged in the alternative, in the language of the statute, every negligence which the statute makes actionable; or he might select one, if he is willing to stand upon that one, as was done in this case. If count 1 was subject to either ground of.demurrer, it was to the third-ground, and that was cured by the subsequent amendment.

The demurrers to pleas 2 and 8 as answers to count 1 were general demurrers. Each ground assigned was general. For this reason, if for no other, the demurrers should have been overruled. If there was a defect in either of said pleas, it was not pointed out by the demurrers. The substance of each plea is such that, if defective, it could have been amended so as to make it a. good plea. We cannot, therefore, say that it was error without injury to sustain said general demurrers. The court, therefore, erred in sustaining said demurrers. — Shahan v. A. G. S. R. R. Co., 115 Ala. 190, 22 South. 449, 67 Am. St. Rep. 20.

We are of opinion that the demurrers to pleas 4, 5, and 9 were properly sustained. There were no facts stated to sIioav any causal connection between the negligence alleged and the. injury. — Osborne, Adm’x, v. Ala. Steel Co., 135 Ala. 575, 33 South. 687; Tenn. Coal & Iron Co. v. Herndon, 100 Ala. 451, 14 South. 287; L. & N. R. R. Co. v. Markee, 103 Ala. 160, 15 South. 511, 49 Am. St. Rep. 21.

The third ground to replication No. 3 to plea No. 6 should have been sustained, as the engineer was not superior to the fireman in the matter of keeping a proper roadbed. As this was outside the duty of either the fireman or engineer, there could be no question of superior or inferior between them in reference thereto.

On cross-examination of defendant’s witness John Bottoms, the plaintiff asked the said witness the following question: “Is it a fact that the track is laid out of light rails?” The defendant objected to the question upon the general grounds that it called for irrelevant, immaterial, and illegal evidence. The court overruled the objection, and the defendant excepted. The scope which the cross-examination of a witness may take to test his recollection and his knowledge of the matter being inquired into is largely within the discretion of the trial court. — Tobias & Co. v. Treist & Co., 103 Ala. 670, 15 South. 664; Noblin v. State, 100 Ala. 13, 14 South. 767; Rhodes Fur. Co. v. Weeden, 108 Ala. 252, 19 South. 318. There was no reversible error in alloAVing said question to be asked. In fact, we are of opinion that the questions Avas, on cross-examination, entirely permissible, and the court committed no error in alloAving the same over the objection of defendant.

The twenty-fourth, tAventy-fifth, and twenty-sixth assignments of error are to the ruling of the court in striking pleas 3, 7, and 12, upon motion of plaintiff. It is insisted by counsel for appellee that the action of the trial court cannot here be considered for the reason that these pleas are not set out in the bill of exceptious. We concede that such was the effect of the ruling of this court in the case of Aetna Life Ins. Co. v. Lasseter, 153 Ala. 630, 45 South. 167, 15 L. R. A. (N. S.) 252. In several other decisions of this court, where this question was not squarely before the court, it is intimated that it is necessary, where motion is made to strike a pleading from the file, that the motion, pleading, and the ruling of the court thereon must appear in the bill of exceptions before this court can consider the same. But, upon careful consideration of this question, we are of the opinion that, where the bill of exceptions sets out the motion and the ruling of the court thereon, it is not necessary to copy the pleading into the bill of exceptions, provided the pleading is copied in the record, as it should he, and is sufficiently designated in the motion, so that there can be no doubt as to the particular pleading which the motion asks to be stricken. We therefore overrule the case of Aetna Life Ins. Co. v. Lasseter, 153 Ala. 630, 45 South. 167, 15 L. R. A. (N. S.) 252, so far as this rule is concerned, and confine the other cases to the facts of those cases, where this question does not directly appear, and which intimate that pleadings must, in all cases, be set out in the bill of exceptions, where motion has been made to strike them, before this court can consider them.

The motion to strike pleas 3, 7, and 12 should have been overruled, as they were neither unnecessarily prolix, irrelevant, nor frivolous. If the facts stated in these pleas were insufficient, in laAV, to constitute a valid defense to the action, it was the office of a special demurrer to point out the defect, and, by so doing, inform the pleader Avherein the insufficiency existed, thereby affording an opportunity of amendment.” — A. G. S. R. Co. v. Clark, 136 Ala. 461, 34 South. 920. These pleas were evidently bad, but not subject to motion to strike. The plaintiff should haAe pointed out the defect by demurrer, so that the defendant might amend if he saw proper.

Charge 1 was defective and was properly refused. The locating of the cars upon the side track was not, according to tbe evidence, a part of plaintiff’s duty. The car having been- left as it was, by those superior in service to plaintiff, constituted a part of the environment, of which defendant, through its employes superior to plaintiff, was bound to take notice in operating said engine. An act which might not have been dangerous, or even negligent, but for said car being so placed, might become highly dangerous and negligent with said car so placed.

Charge 2 was properly refused, as it was for the jury to determine whether, under all the circumstances, it was negligent conduct on the part of the engineer to run the engine at the rate of speed it was run.

Charge 8 was defective because, if defendant or its employes who were superior to plaintiff knew of the defect alleged, it was unnecessary, by the terms of the statute, for the defendant to give them notice thereof. It was, therefore, properly refused.

Charge 5 was defective in that it hypothesized no causal connection between the alleged negligence of plaintiff and the injury received by him, and was, therefore, properly refused.

Charges 4 and 8 were properly refused, as the evidence was in conflict upon the issues raised upon the pleadings to counts 2 and 5.

Charge 9, when considered in connection with plea 14, should have been given, as it hypothesizes the substantial averments of said plea.

Charge 10 was bad for the reason that, as a matter of law, the charge states the proposition of assumption of risk by plaintiff too broadly. In the case of L. & N. R. R. Co. v. Stutts, 105 Ala. 376, 17 South. 31 (53 Am. St. Rep. 127), it is said: “If the employe while engaged in the service acquires knowledge of any defects in the materials, machinery, or instrumentalities used, and notice thereby of an increased risk of danger, and afterwards continues in the service, without objection or notice to the employer, he assumes the increased risk himself; but he may notify the employer of the defect, and continue in the service for a reasonable time, relying upon the promise of the employer to remedy the defect. Yet, if the defect is not remedied within the promised time, his further continuance in the service is at his own risk, and he is guilty of contributory negligence.”. On comparing this charge with the law as just quoted, it will be seen that the charge is too broad. The law as stated shows that there is a condition under which an employe might continue for a. reasonable time after discovery of defects without assuming the extra risk.

Charge 11 was too broad in its statements, or, at least, misleading; and was properly refused. He undoubtedly assumed the risk incident to his employment, but his was not the only employment on the engine. Nor did he assume the risk of negligence of a fellow servant in handling the same.

The appellant insists that the affirmative charge should have been given at the request of appellant because, as he says, plea 13 was proven without dispute. It is sufficient answer to this argument to say that plea 13 did not purport to answer count 1 of the complaint. It was therefore properly refused.

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

Beversed and remanded.

Dowdell, C. J., and Simpson, Anderson, McClellan, Mayeield, and S-ayrei, JJ., concur.