Alabama Great Southern Railroad v. Ellis, 137 Ala. 560

Alabama Great Southern Railroad v. Ellis

137 Ala. 560 | Ala. | 1902

SITARPE,. J.

-Defendant’s foreman, Eason, having charge of its switching crew, including' plaintiff, was superintending the switching of cars in a switching yard in the'night time.. Two flhtcars which were to be sent to. the shop for repairs were, taken from a side track and “kicked” on the main line along an up-grade. Eason had ordered plaintiff to catch and hold those cars so as to' keep, them from' running back towards the point from which they were kicked. There was evidence tending to show the ears did run back some distance; that plaintiff got on them about the time they began’ the retrograde movement, and attempted to hold them by means of a defective brake, that while he. was só engaged, and without notice to him, other cars.were, under Eason’s imriiediate supervision and order, run up, the main line, and that the same1 violently struck the car plaintiff was on'camf ing him to fall to the tracjc.and.be iniured.' ' 1

‘ Under, the evidence /the question o-f whether Eason was negligent in causing'the second lot of cars h> be run up the main line under the circumstances, was proper'to he *567submitted to the jury under the second count of the complaint. The determination of that question depended on whether to a reasonably prudent man in Eason’s position, that action would have appeared as involving a probability of injury to plaintiff. ■ If such was the case, the duty rested upon Eason of adopting a course calculated to avoid injury, and a failure to discharge that duty, if it existed, was negligence. The conditions existing at the time of, and the circumstances attending, the accident, were, so far as disclosed by the evidence, pro]' er to be considered by the jury, for only in the light of such conditions and circumstances could the jury judge of the propriety of Eason’s, conduct or of the plaintiff’s conduct, which under the pleas.of contributory negligence had also to be passed on.

Defects in the cars plaintiff was sent to hold, though not. declared on in the second count as existing through negligence, were yet1 a condition' -which, according to some evidence, made it difficult for plaintiff to control the retrograde movement of those cars, and that fact, if known to Eason was conducive, to show he ought to have been mindful of such difficulty and ought, if the cars were obscured by darkness, to have made a. special investigation of their whereabouts before running other ears in their direction. Moreover, there are -pleas to the second count which attribute fault to plaintiff in failing to hold the cars, and which, therefore., invited consideration, of such defects under that count

'The foregoing leads to the conclusion that, no error was committed in giving charge A for plaintiff or in refusing charges requested by defendant.

’ As to whether .plaintiff’s injuries, were caused by the collision of cars, the evidence does not accord in tendency. Paintiff in testifying, affirmed that they wrere so caused, and no other witness professed to know the cause. There is evidence of circumstances from which it might be uncertainly inferred that he. was injured by something occurring on a side track, but neither on this nor on any other vital matter in dispute does the evidence so preponderate in favor of the defendant as to show that the trial court erred in overruling the motion for ne-w trial.

Judgment affirmed.