Walton v. T. C. I. & R. R.

52 So. 328, 166 Ala. 538, 1910 Ala. LEXIS 354

• Court: Supreme Court of Alabama
• Decided: April 14, 1910
• Status: Published

Opinion

BAYNE, J.

The plaintiff alone- testified to the manner in which he received his injury. It seems that there was some defect in the switch, but that fact cannot be attributed to any breach of duty owing from the defendant to the plaintiff at the particular time, for the plaintiff’s business at that time was to repair the defect. As for other aspects of the case, we have been unable, after repeated readings of the plaintiff’s testimony, to find anything upon which a jury might hang a verdict for the plaintiff. The fact that plaintiff was hurt while in the employment of the defendant, and while engaged in doing what his contract of employment required him to do, did not suffice to charge liability therefor upon the employer. It was necessary that negligence be shown under some subsection of the statute. This the plaintiff failed to do. On his own account of what occurred the jury would have been justified in referring plaintiff’s injury to inevitable accident only; that is, accident which prudence on the part of defendant, or those employes standing in places of responsibility in respect to plaintiff, could not have anticipated, or they might have referred it to the negligence of plaintiff’s co-employe Burdett. But Burdett was a fellow servant without more. H’e stood in no such relation to plaintiff, nor had charge for defendant of any such instrumentality, as that the employer’s liability act imposed liability upon the common master for his negligence. There was nothing to take the case to the jury, and the general charge was well given for the defendant.

Affirmed.

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