[Birmingham Railway & Electric Co. v. Baylor.] section 2590, were united and blended in one count, and in some instances averred in the alternative. The rule declared in the Dusenberry Case in regard to the pleadings was recognized in the case of Kansas City, M. & B. R. R. Co. v. Burton, 97 Ala. 240, 12 So. Rep. 90. In the case of L. & N. R. R. Co. v. Mothershed, 97 Ala. 261, 12 So. Rep. 714, referring to the Dusenberry Case, supra, we said: "It was not held, that when several causes of action averred and relied on for recovery arose under the same subdivision of section 2590 of the Code were stated separately, but not disjunctively, and each averment contained a substantive cause of action such a count was demurrable. A count of this character fully informs the defendant that each substantive averment is relied upon, and he may prepare his defense accordingly. Proof of either will authorize a recovery. The distinction must be kept in mind, where a single count contains several distinct, independent averments each presenting a substantive cause of action, and a count containing several averments all of which combined together make up the one cause of action averred. As to the former, proof of either will authorize a recovery, whereas in the latter it is necessary to prove each of the averments, in order to sustain the cause of action as laid." Mere redundancy will not vitiate a complaint. The redundant portion. may be stricken out, or rejected as surplusage. Let us apply these principles to the several counts of the complaint, and also examine the ruling of the court upon the several instructions refused, with reference to the evidence as applicable to the several counts. The negligence charged in the first count is "of persons in the employment of the defendant who had charge of the switch * ** in leaving said switch open'' &c. The cause of action here averred is that given by subdivision 5 of section 2590. The question arises, as to who was in charge of the switch, and what is meant by "charge or control of a switch?" The defendant introduced evidence as follows: "Mr. Aldrich had charge of looking after the switches and keeping them in order; he was the section boss or road master. Aldrich was the man that looked after the switches. The sections were seven or eight miles. Turning to Aldrich's testimony, and he states that he was section foreman, that he went his rounds the morn [Birmingham Railway & Electric Co. v. Baylor.] ing of the day on which plaintiff was injured at night. "I did not have occasion to pass there any more during the day; I had no notice of or reason to think that the lock had been taken away up to the time that Baylor was hurt." We do not think the section foreman was a person in charge of the switch in such sort that it was his duty to attend to and watch the switch and see that it was properly closed or opened. His duty was rather that of a superintendent under subdivision 2, and he was required to superintend and see that the ways, works, machinery and plant, so far as these terms embraced his duties, were kept in order; and if it could be said that he was in charge of the switch in any sense, it would be for this purpose, and not for the purpose of attending to the closing or opening of the switch. See Burton's Case, supra. No special person was put in charge of the switch, and yet we are satisfied that, under the evidence, there were persons in charge of the switch, within the meaning of the statute. The evidence for the defendant is that the switch was provided with a suitable lock, and that the section foreman, conductor and engineer, each were provided with a key to this lock. If the foreman, Aldrich, was not charged with the duty of attending to the opening and fastening of the switch, and no one was specially appointed to this duty, and the spur track, connected to the main line by this switch, was in constant use in order that the trains might pass each other, and the enengineers and conductors were provided with keys for this purpose, there is no other conclusion open, but such persons, pro hac vice, were in charge of the switch. The evidence shows that William Dill, an engineer in charge of an engine, used the spur track about thirty minutes before the accident. True he testifies that he saw that the switch was properly secured (not shown to be locked) before he left it, but the evidence is conclusive, that the next train passing along, and upon which plaintiff was injured, left the main track and went through the switch on the spur track in about thirty minutes afterwards. We think there was sufficient evidence to submit to the jury plaintiff's demand under the first count of this complaint. There was no error in refusing the 4th, 5th and 6th charges requested by the defendant. We come now to the second count, and this count brings [Birmingham Railway & Electric Co. v. Baylor.] up for consideration the principles of pleading referred to in a former part of this opinion. It is averred in this count that the injury was caused by "the negligence of of persons in the employment of the defendant, who had charge of the switch, ** in failing to properly fasten or secure said switch so that the same would not come open, and by reason of the negligence of persons in the employment of the defendant, who had charge of said train, to properly supply it with equipments for bringing the same to a quick stop, by reason of which said failures [plural] said switch did come open, thereby," &c. "Plaintiff avers that he was aware that persons superior to him engaged in the service or employment of the defendant knew that said switch was not properly fastened or secured, and that said train was not properly equipped for coming to a quick stop," &c. This count considered as a whole is very confused. The negligence first charged consists in a failure to "properly fasten or secure said switch," and, as we interpret it, arises as in the first count under subdivision 5 of the act. The negligence next charged is the failure to properly supply the train with equipment for bringing the same to a quick stop."' This charge is for a defect in the ways, works, machinery or plant, and arises under subdivision 1 of the act, and it is averred that the failure to provide "equipments for bringing the same to a quick stop" was by reason of the negligence of the persons "who had charge of the train." The conductor had charge of the train at this time, and there is no averment nor proof that it was his duty to supply "proper equipments. Moreover, the act itself provides that the master or employer is not liable under subdivision 1 (for defect in the ways, works, machinery or plant), unless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the master or employer, or of some person in the service of the master or employer and entrusted by him with this duty," &c. The count contains no sufficient averment to show a liability for negligence under subdivision 1. If we consider the words, "in failing to properly fasten or secure said switch so that the same would not come open,' as referring to a defect in the switch itself, and, therefore, as charging a defect in the ways, works and machinery or plant under subdivision 1, so as to bring both [Birmingham Railway & Electric Co. v. Baylor.] charges under the same subdivision, and relieve it of the objection, that two substantive causes of action, arising under different subdivisions, are blended in one count, the count is objectionable for failing to make the necessary averments to show a liability under subdivision 1, in that the "defect arose from or had not been discovered or remedied," &c., as required by the act. We have said the count was not demurred to, but the general issue was pleaded. It becomes necessary to determine in what the cause of action charged in this count consists. We are of opinion, whether it be regarded as uniting a cause of action under subdivision 5 with one under subdivision 1, or whether as brought wholly under subdivision 1, the count does not contain two substantive distinct causes of action, proof of either of which will authorize a recovery; but it combines "the negligence of the person in charge of the switch, in failing to properly fasten or secure it," with the negligence of the person in "charge of said train, in failing to properly supply it with equipments for bringing the same to a quick stop," and the negligence of the two co-operated and together made the one cause causing the injury. The count proceeds, "by reason of which said failures [both of them] said switch did come open," which caused the injury. The count further proceeds, "plaintiff avers that he was aware that persons superior to him engaged in the service or employment of the defendant knew that said switch was not properly fastened or secured and that said train was not properly equipped for coming to a quick stop," thus continuing to combine the two causes as contributing to make up the one cause charged as producing the injury. The rule is very clear, that to authorize a recovery under such a count, the plaintiff is required to establish the negligence as laid, and without proof of both, there could be no recovery under this count. There is not only no proof that it was the duty of persons in charge of the train to supply it with the "equipments" referred to, but there is an entire absence of proof, that there was any defect in the respect charged. The court, therefore, erred in refusing to give the second charge asked by the defendant, which requested an affirmative charge under this count. Pleadings should be brief, perspicuous and in an intelligible form. We think there is much room to improve the second count under these rules. [Birmingham Railway & Electric Co. v. Baylor.] * As we construe the third count it was brought under subdivision 5. It is averred that the injuries were caused "by the negligence of some person in the employment of the defendant who had charge of the switch, * in failing to have properly fastened or secured the said switch so that the same would not come open, * the engineer in charge of said engine negligently failing to use all proper means and appliances to stop said engine so that," &c. From the reading of the count, we are unable to determine whether the pleader intended in this count, to aver that the negligence of the person in charge of the switch, and the negligence of the engineer, combined together, formed the one cause, which caused the injury. If it was intended to charge two distinct substantive causes of action, it was easy to frame the count in such manner as to be easily understood. If the pleader had averred, that the injuries were caused, first, by the negligence of the person in charge of the switch, in failing to properly fasten the switch so as to prevent it from coming open when struck by the train; second, by reason of the negligence of the engineer in charge of said engine, in failing to use proper means and appliances to stop said engine, &c., it would be readily understood. Other phrases or statements would do equally as well as the one suggested as an illustration. No pleas were filed to the 4th and 5th counts. We presume the case was tried throughout upon the general issue. The 4th count charges a defect in the ways, works, machinery and plant in this, that the switch was without a lock by which it could be securely fastened and left; and this count also charges negligence in the engineer in the "rapid running of the train, and a lack of skill or proper effort," &c. If the purpose was to rely upon each as a substantive cause of action, that averred under subdivision 1, and that under subdivision 5, each independent of the other, good pleading would require a separate count for each. Burton's Case, supra. But if it was intended to charge the two as one cause, it should be clearly expressed. We have stated what is necessary in either case to authorize a recovery. We have also stated what averments are necessary to show a liability under subdivision 1. The 5th count charges the engineer with negligence in the rapid rate of speed at which the engine was run, as the cause of the injury. |