99 Ala. 346 | Ala. | 1892
Bichie prosecutes this action against the Alabama Great Southern Bailroad Company claiming damages for personal injuries suffered by him while in the employment of defendant and in the discharge of his duties as a brakeman. The averment is that these injuries resulted from the wrong and negligence of a certain engineer in the employment of the defendant and, at the time and place of the accident, in charge and control of an engine attached to the train on which plaintiff was a brakeman or, to be more specific, it is alleged that at the time and place mentioned the plaintiff and the conductor and engineer of the train were engaged in taking out of the train and leaving on a side track certain freight cars, and that “whilst so engaged, it became and was the duty of plaintiff to go and be between two of said freight cars for the purpose of uncoupling the same; and the plaintiff in the line of his duty accordingly did go between said cars, and whilst there, that is between the cars aforesaid, he, the said engineer, did wrongfully and negligenty drive and propel his
We have considered the evidence in this record with great care with reference to the inquiry whether it involves any tendency to show negligence on the part of the engineer
It being thus with the jury to find either tbat tbe engineer was or tbat be was not negligent, or, finding tbat be was negligent, to find further tbat plaintiff was not in tbe exercise of tbat prudence and diligence which a man of ordinary care and caution would have exercised under tbe circumstances; and if their conclusion was tbat both parties were guilty of wrong or negligence contributing proximately to tbe disastrous result, their duty was to return a verdict for tbe defendant, unless it was open to them, on tbe testimony, to further believe and find tbat tbe engineer knew or bad reason to believe tbat tbe plaintiff was exposed to tbe peril from, which tbe injury resulted, and failed, after be bad this knowledge or reason to believe tbe fact, to exercise tbe care and diligence which a man of ordinary care and diligence would have exercised in tbe premises to save tbe plaintiff harmless in spite of bis own want of care. Such failure under tbe circumstances hypothesized is deemed in tbe law, as frequently declared by this court, tbe equivalent of that indifference to threatened damnifying results, tbat wantonness, willfulness or conscious wrong, for injuries attributable to which tbe plaintiff may recover notwithstanding bis own contributory negligence.
Yery many of tbe rulings of tbe trial court proceeded, and can be sustained only, on tbe assumption that there was evidence in this case tending directly or through inference to show that tbe engineer witb a knowledge of plaintiff’s peril failed to exercise due care and diligence to save him from tbe consequences of bis own negligence. Tbe assumption is, in our opinion, unsurported and gratuitous. We are unable to find any such evidence in this record. There is no testimony which affords even an inference tbat tbe engineer ever knew or bad reason to believe tbat tbe plaintiff was exposed to tbe danger from which be suffered tbe injuries counted on until after those injuries bad been sustained. What be did
This case is essentially unlike the case of Louisville & Nashville R. R. Co. v. Watson, 90 Ala. 68, and Hissong v. Richmond & Danville R. R. Co., 91 Ala. 514, upon which reliance is had by the appellee. In Watson’s Case the engineer not only knew that the plaintiff was between the cars, but there was evidence from which the jury might have inferred that he knew or had reason to believe plaintiff’s hand was between the bumpers of the cars — the draw-heads, which also performed the functions of dead-woods — and with this
The danger to plaintiff from putting his arm where it was caught between the dead-woods was not necessarily obvious to him, that is, the jury might have found that it was not, if they believed there was a second lurch of the train against the car that had been uncoupled, and hence charge ■ 14 was properly refused.
Charges 15 and 17, requested for defendant, present questions that need not arise on another trial.
Charge 18 assumes that an engineer can not be negligent in operating his engine, if he does so in prompt and careful compliance with the signals of the conductor. This is not true where the act commanded, however performed, would be a negligent one, and it was not for the court to assume, as the giving of this charge would have involved its doing, that the testimony of the conductor, to the effect that the signals given by him on the occasion in question were the proper signals to be given and commanded the doing of proper acts by the engineer, was true.
The 19th charge of defendant’s series was well refused. Its statement of the general proposition of law is, of course, sound; but we are not prepared to say that the rule stated is applicable to the facts therein hypothesized. If, under the circumstances, the plaintiff had time and occasion to see and comprehend that the safe way to lay the pin on the draw-head was to stand on the cross-tie, and had time to thus adjust himself, he should have done so; but these considerations are not hypothesized in the instruction as framed.
Charge 20 is in the nature of an argument, and was well refused on that ground.
Of the charges given for plaintiff that numbered 8 may have involved a tendency to mislead as to the true interpretation of the rule of the defendant company, which was put in evidence, but is not otherwise objectionable; and that numbered 14 is abstract.
The rulings on the admissibility of testimony are free from error, except in the particular considered in the outset of this opinion.
Reversed and remanded.