Southern Railway Co. v. Cooper , 172 Ala. 505 ( 1911 )

McCLELLAN, J.

This case was tried on counts 1 and 6 as last amended.

The original complaint, consisting of four counts, undertook to declare on a cause of action, in varying forms, under the employer’s liability act (Code 1907, § 3910).

Subsequently, and against defendant’s (appellant’s) objection, on the ground of departure, plaintiff (appellee) was allowed to amend his complaint by filing a new count (1) wherein the gist of the action was injury, due to negligent conduct or omission of defendant’s servants on the engine, to a person unrelated in employment to defendant on a highway upon a public crossing thereby of a railway. Further amending his complaint, against defendant’s objection, on the same ground as was opposed to the allowance of the new first count, the plaintiff was allowed to state his case in an amended count 6. This count followed new count 1 in the allegation of the circumstances attending the injury, but the addition by amendment of the clause to follow effected to bring the count under the influence of subdivision 5 of the liability act. “Plaintiff further avers that at the time he was injured as aforesaid he was an employee of the defendant and engaged in delivering orders to make crew for its train ánd he was then and there engaged in his said duties.” Hence there was no semblance of departure from the original complaint. Nor was there a departure effected — a change of cause of action — by the rewriting of count 1. — Ala. Con. C. & I. Co. v. Heald, 154 Ala. 580, 45 South. 686. That decision establishes this test of the propriety of the allowance of an amendment under our statute, even before the last codification, and gives such allowance the effect, in relation back to the institution of the suit, to avoid the running of the statute of limitation, viz., that the amendment declare on a cause of action that would be barred by the recovery on the cause of action described in the original pleading, and vice versa. There are decisions, delivered here, opposed in principle and doctrine to the test expressed, as stated, in the Heald Case, but these cases must be taken as not in accord with the doctrine now established and settled in this court.

An insistence for appellant, predicated on grounds of demurrer taking the point, is that the counts show plaintiff to have been guilty of contributory negligence.

It is not the duty of such a plaintiff to negative his negligence. Contributory negligence is matter of defense, and must be pleaded.

Under these counts, the' plaintiff might, let us assume, have been guilty of negligence in being where he was, when and as he was, with the engine approaching, and yet the defendant’s servants might have been culpably, proximately, negligent in omitting to conserve his safety after discovery of his peril. And, if so, the negligent act or omission of the plaintiff became the condition upon which the subsequent negligence of the defendant’s servants operated to afford the proximate cause of the injury. — L. & N. R. R. Co. v. Young, 153 Ala. 232, 45 South. 238, 16 L. R. A. (N. S.) 301, among many other of our adjudications cited therein. Besides the general issue, the contributory negligence set up was this: That plaintiff stepped on the track in front of a dangerously near and approaching locomotive; that he did not stop, look, and listen before doing so; that he so subjected himself to injury notwithstanding the bell on the engine was ringing; that he walked so dangerously near the track on which the engine was approaching and did pass as that he was stricken by the engine. The evidence showed, without conflict, that plaintiff was an employee of the defendant, and was, when injured, in the performance of his duties as a “caller” of train crews at a division point. Count 1, as before stated, proceeds on the theory that plaintiff was, when injured, a stranger in respect of service to the defendant. — Wendell v. Penn. R. R. Co.. 57 N. J. Law, 467, 31 Atl. 720.

One injured cannot sue as a stranger and recover on proof showing he was a servant of the master whom he impleads, any more than a stranger to the service of the master may sue as his servant and recover.- — Choate v. A. G. S. R. R. Co., 170 Ala. 590, 54 South. 507. The elements and measure of duty are in each case different, distinct.

The statutes and' municipal ordinances conservative of the safety of the public at defined public places along the railway do not include those in the service of the master. — L. & N. R. R. Co. v. Holland. 164 Ala. 73, 51 South. 365. At common law, the servant .assumes certain risks, for the consequences of which, to his injury, he cannot recover of the master; whereas, if the .stranger be not a trespasser or licensee, and he not guilty of -contributory negligence, but, on the contrary, is, when injured, where he has a right to be, he assumes no risk of injury from the instrumentalities in use of the railway.

Having constructed count 1 on the theory indicated and his proof showing him to have been, when injured, in the service of the defendant, there was a fatal variance, because of which defendant was entitled to the general charge, as to count 1, requested by it. Its refusal was error. — Choate v. A. G. S. R. R. Co., supra.

Count 6, as last amended, ascribes plaintiff’s injury to the negligent running of the locomotive upon and against plaintiff, who, the amendment to this count recites, was then in the service of the defendant, and then performing the duty of that service.

According to the plaintiff’s theory of fact as to the means of his injury, he was overtaken by the locomotive, and solely because it was defective in the particular that a. step leading into the gangway, between the engine proper and the tender, was out-bent a foot or more beyond the normal sweep of engines of that type, and he was struck in the back or side by the projection, and thrown beneath the wheels of the running engine. It is not to be doubted, as upon the evidence adduced for plaintiff, that but for the out-bent step he would have escaped contact with the engine. We do not think such evidence tended to support the count last mentioned. The negligent running of an engine is not the legal equivalent of the negligent running of a defective engine. Under the plaintiffs’ theory of fact, it was the engine’s defect that produced his injury.

Viewing the case solely upon the plaintiff’s stated theory of fact, it is evident, we think, that plaintiff’s pleading should have, if variance was to be avoided, been constructed, in separate counts, upon these respective theories leading, if established, and:, if jthe plaintiff was not guilty of contributory negligence, to liability. First, it should have been averred that the operatives in control of the locomotive knew of its defeet, or were negligent in not discovering it, whereby the engine’s zone of danger, to one beside the track on which it was running, was extended beyond that of a normal engine, and, being so informed, negligently operated that locomotive to plaintiff’s injury; or, second, that his injury was the proximate result of coalescing breaches of duties under the first and fifth subdivisions of the employer’s liability statute. — L. & N. R. R. Co. v. Fitzgerald, 161 Ala. 397, 405, 406, 49 South. 860; Bridges v. Term. Coal Co., 109 Ala. 287, 19 South. 495.

The mere presence of a defect in the condition of the ways, works, machinery, etc., does not alone render the master negligent. It must have arisen from or not been discovered or remedied owing to the negligence of the master or of some one intrusted by him with the duty of seeing that the ways, etc., were in proper condition: That is the substance of the language of our statute. Prom this statute-fixed premise it must result that in order to impute negligence to the master, through the wrongful act or omission of one within the terms of the fifth subdivision of the statute, because of the negligent handling of the defective instrumentality, that person must have known of the defect, or must have been negligent in the discovery of the existence thereof. If not so, the master would be rendered liable notwithstanding the absence of negligence, in respect of knowing or discovering the defect, of the servant in control of the instrumentality, and notwithstanding the statute’s provision that a master is not liable unless the defective condition arose from or was not discovered or remedied owing to the negligence of the master or of his employee instructed as the statute prescribed.

A general averment of negligence cannot avail to meet or to avoid the requisites of good' pleading of a cause of action essentially based upon the first subdivision of the statute. To permit it would emasculate the statute in the particular stipulating against liability of the master. • •

Looking to another trial of this cause, we have carefully reviewed the evidence upon. the question of contributory negligence of the plaintiff as pleaded below. If he did not, without due, care, step upon the track in front of the approaching engine and thereby invite his injury, and bar his recovery, unless those in charge of the engine were negligent after discovery of his peril (L. & N. R. R. Co. v. Young, 153 Ala. 232, 45 South; 238, 16 L. R. A. [N. S.] 301; Anniston El. Co. v. Rosen, 159 Ala. 195, 48 South. 798, 133 Am. St. Rep. 32) but, on the contrary, was walking beside the track clear of the sweep of a normal engine of that type, though within, to wit, 24 inches of the outer normal line of that type of engine, his contributory negligence vel non was an issue for the jury to decide.

Again, if those in control of the engine were aware of the extended, by the projecting out-bent step, zone of danger from the engine, and were aware of his presence, walking beside the track, within that zone, and it was apparent from the circumstances actually known to them that he was unconscious of his danger therefrom, then it became their duty to conserve his safety by sounding an alarm or by resorting to the appliances provided to check or stop the train, or by doing both.— L. & N. R. R. Co. v. Young, supra.

For the errors committed by the refusal to the defendant of the affirmative charges as to counts 1 and 6, the judgment is reversed and the cause is remanded.

. Beversed and remanded.

Simpson, Mayfield, and Sayre, JJ., concur.