Birmingham state herald., 1896-02-07
EMPLOYERS LIABILITY ACT George vs. Mobile and Ohio Rail-
 road Company. SUPREME COURT DECISION
Appeal From Mobile Circuit Court-Tried Be-
 fore Hon. James I. Jones.
,TIQvs ,GAINST RAILROAD BY EMPLOYE
z amages for Personal Injuries Genera, :s jharge and Verdict in Favor of De-
 fendant-PlaintiffA Appeais-Judg-
 ment Lower Court Affirmed.

Gregory L. and H. T. Smith. for ap- pellant.
 Edward l.. Russell and R. p Deshon contra,
 Mcclellan, J.-Thls is an action prose- cuted by George to recover damages from the railroad company for personal injuries sustained by plaintiff by being run over by an engine of the defendant. The complaint originally contained twen- ty-seven counts. On former trial de- murrers were sustained to all of the countse except the nineteenth, twenty first, twenty-third, twenty-fourth, twenty sixth and twenty-seventh, and overruled as to these. The twenty-fourth count was afterwards withdrawn. Judg- ment went for plaintiff on that trial. and on appeal to this court the judgment was reversed. 94 Alabama, 199 The ac- ton of the lower court in overruling de- murrers to the nineteenth, twen- ty-hrst, twenty-third and twenty sevenths counts was sustained, but the tWenty-sixth count was held to be bad and the overruings of the demurrer to 1t erroneous. For this, among other
 erroneous rulings of the trial court, the reversal was had. The cause coming on again in the cir cult court this twenty-sixth count was amended so as to obviate the infirmity adJudged by this court. The nineteenth, twenty-frSt, twenty-third and twenty seventh counts were also amended, and a new count was added, numbered 2S. The amendment to the nineteenth count con- sisted in striking out the word brake man and inserting "switchman" instead, and by stating the name of the switch man to whose orders plaintiff was sub ject at the time of the casualty. The amendments to the twenty-hrst and twenty-third counts were of much the same character, merely mak- ing 1t appear that the plaintiff was a switchman instead of a brake man, as had been first alleged. and giv- ing the name of the yardmaster referred to In the original twenty-first count, and of the engineer referred to in the origi- nal twenty-third count. The twenty sixth and twenty-seventh counts were amended to meet the decision and sug- gestion' of this court, so as to aver that the defect in machinery, etc, complained of arose from or had not been discovered or remedied owing to the negligence of the defendant, etc, etc., and also by sub- stituting the word "switchman" for brakeman" in stating the capacity in which plaintiff was employed by the de- fendant. On the first trial the general is- sue, with other pleas, was interrcsed to all of these counts. Before the last trial the defendant filed numerous other spe- cial pleas to these counts, but express ly without waiving or withdrawing the pleas filed before the amendments to which we have referred the record re- cital being: Comes the defendant and pleads the following additional pleas to the nineteenth, twenty-first, twenty third, twenty-sixth and twenty-seventh counts of the complaint as amend ed by plaintiff. in no way with drawing or waiving the pleas on file" And after this one of said origi- nal pleas interposed to the twenty-sev- enth count was amended without obJec- tion, and thus treated as having continued to be a plea to that count. Moreover all these pleas were and contnue9Pe throughout on the files of the cause. and the plaintiff finally in express termS>took issue "on all the pleas on file to which demurrers have not been sustained" We therefore cannot concur insthe con- tention of the appellant that the gen. eral issue was not pleaded to the counts named.
 There are two hundred and thirty~nlne (23O assignments of error on thIs appeal. Two hundred and twenty-five (225) of these go to the rulings of the trial court on the pleadngs. embracing it's action in sustaining demurrers to counts l. 2, 5, 4, 5, 6, T. 8, g. 10, IT, 12, 13, IA, 15, Is, IT, 1S 20. 22 and 25 on the first trial in everything plaintiffs demurrers to and motions to strike out parts of some of defendants pleas, in sustaining defendants demur- rers to some of plaintiffs replications and in refusing to allow plaintiff to amend replication after the second de- murrer thereto had been sustained. One assignment of error is addressed to the ruling of the court upon the admissibility of testimony. Twelve assignments go to parts of the charge given ex nero motu by the court, and the remaining assign ment challenges the courts action in giving the general affirmative charge for the defendant at It's request in writing.
 In respect of the rulings of the court upon demurrers to counts of the com plaint, 1t is demonstrable that no injury to the plaintiff resulted therefrom, whether they were abstractly erroneous or not. Two of these counts are drawn under the common law, and, referring to one of them on the former appeal, this court said: Tt being undisputed that the plaintiff was an employe of the de- fendant. and a fellow servant of the en- gineer in charge of the engine which 1t Is alleged negligently run over him, he Is not entitled to recover under the first count, as we have construed 1t to be suit by person not In the employment of the defendant, but lawfully on the track. The liability for injury to an em- ploye, caused by the negligence of a fel- low servant, rests on entirely different principles from the liability to stranger Jn the track by license or invitation. In the case of an injured employe the case must contain other and distinct aver ments, whether seeking to enforce the common law or the statutory liability of the employer. The variance between the allegations of the first count and the proof is fatal" Mobile and Ohio Rail- road company vs. George. 94 Ala. 199, 221. As is recognized in this quotation, there could of course, be a recovery at com mon law by an employe for injuries suf- fered through the negligence Of the em- Dloyer himself as distinguished from that of a co-employe in a proper case, but on the fully developed facts here, 10 which may be added the facts averred in these common law counts not inconsistent with