The holding in the Foley Case was reaffirmed in the more recent case of Mobile Elec. Co. v. Sanges, 169 Ala. 341, 53 South. 176 Ann. Cas. 1912B, 461. See, also, in this connection King v. Woodward Iron Co., 177 Ala. 487, 59 South. 264.
At the time of the injury the engine on which plaintiff was fireman was standing still, and the plaintiff was in the act of cleaning out the flues (a-part of his duty) with the'flue auger. The crew had stopped, temporarily, to go up to the yard office for some purpose not disclosed, and the evidence for plaintiff tends to show that he merely took advantage of this temporary lull in the work of making up the train to blow out the flues of his engine. This is further indicated by his testimony, where he says: “We were going to go back at making up the through train.” The answer of the defendant- to interrogatories propounded by the plaintiff shows that “engine No. 117 was standing still at the time the accident occurred, but had been handling or switching in the Birmingham yard cars loaded with interstate freight on the day plaintiff was injured.”- One Gladden, witness for defendant, and who was in charge of said engine No. '117, testified: :
“All that day we were switching cars in the yard, * * * making up trains to go south, to go to Meridian, Miss: The other crew were switching cars'in there-to go south. - * * * We were both switching in the same yard, making up trains, Meridian, Miss., trains.”
The plaintiff was engaged as a member of a crew at the time of the injury, making up a train to go to Meridian, Miss. A fair inference from the testimony as above indicated would be that there was a temporary lull while some of the crew went to the yard office for some purpose, and the work of making up the trains had not been completed. We deem a discussion of the cases cited by counsel for appellant unnecessary, as we think the principles which controlled the court in the case of N. C. & St. L. v. Zachary, 232 U. S. 248, 34 Sup. St. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159, are conclusive in this case against the contention of appellant. See, also, the Pederson, etc., Case, supra; Roberts on Injuries to Interstate Employees, § 35, and cases there cited; L. & N. R. R. Co. v. Carter, 195 Ala. 382, 70 South. 655; Pittsb., C., C. & St. L. Ry. v. Glinn, 219 Fed. 148, 135 C. C. A. 46; N., C. & St. L. Co. v. Banks, 156 Ky. 609, 161 S. W. 554. We are of opinion that the case was properly brought within the influence of the federal Liability Act. There is nothing in the case of L. C. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, cited by counsel for appellant, which in the least militates against the conclusion here reached. In that case the employee was engaged in moving cars from one part of the city to another, all of which were loaded with intrastate freight.
“I just threw them down by themselves. * * * Without anybody on them; they ran in that condition about 7 car lengths; it was a gradual down grade, going north. * * * When they left our engine * * * the train was going about three or four miles an hour. * * * They increased their speed until they struck the other cars. * * * It did not stop them. They are not supposed to stop, knock them on down in the clear; clear the switching lead. * * * On that occasion I turned those cars loose to bump against two standing cars, * * * with the knowledge that the two standing cars would not stop them, and that the standing cars would be bumped, and might run about as far as 20 car lengths, * * * without any control at all. * * * I knew that this engine Skotzy was fireman of was standing on the next track. * * * I knew that when I cut the cars off. * * * It was daylight there; I could see those cars. I was about 7 car lengths away from Skotzy’s engine. A car length is about 36 feet. * * * I was about 252 feet away. * * * I could see everything perfectly plain. And I did look down to see.”
Much of the argument of appellant’s counsel seemed to rest upon the theory that the defendant owed plaintiff no duty to keep a lookout or to give any signal of approach. The evidence for the plaintiff tends to show that in switching the cars the crew, to quote the witness, “is supposed to look out and see if anybody is on the track,” and “it was a rule not to move cars without a signal.” In L. & N. R. R. Co. v. Thornton, 117 Ala. 274, 23 South. 778, the following charges were held properly refused: “(8) I charge you that the brakeman on the car that ran over plaintiff was only required to keep such a lookout as a reasonably prudent man would have kept in performing the duties of a brakeman, and he was not required to keep a special lookout for persons lying on the track. (10) I charge you that it was not the duty of the brakeman on the car that ran over plaintiff to keep a lookout for human beings on the track in front of his car:”
The facts in the Thornton Case bear some analogy to those here under consideration. Speaking to the ruling of the court in refusing charges 8 and 10, above quoted, the court said:
“This brakeman was, for the time, so to speak, the engineer of the descending car. He, and no other person had control over it, and that was his duty. It has been held that engineers,' or persons in control of an engine or car, ‘should always be on the lookout for obstructions (whether of persons or things), and, when discovered, no matter when or where, should use all the means within their power to escape the impending danger, or to avert the threatened injury;' and less care than this is not due diligence.’—S. & N. Ala. R. R. Co. v. Williams, 65 Ala. 78. The rule of the company required each employee' * * * to look out after, and be responsible for, his own safety, as well as to
We are of the opinion that the question of negligence was one for the jury.—Randle v. B. R. & P. Co., 158 Ala. 532, 48 South. 114. An examination of the case .of Johnson v. N., C. & St. L. Ry., 177 Ala. 284, 58 South. 447, cited by counsel for appellant, discloses that there was no ruling by a majority of the court in that case that no negligence was shown.
Charge 5, requested by defendant; was properly refused. If not bad for other reasons, its refusal could be properly based upon the fact that it fails to take into consideration any-duty on the part of the servants of the' defendant to look out for obstructions on the track (L. & N. R. R. Co. v. Thornton, supra), or to give warning after the discovery of plaintiff’s perilous situation.
We have dealt with each of the questions presented by counsel for appellant, although we have not commented upon the several authorities of other jurisdictions cited by counsel in their brief, as we deem the case ruled by the decisions of our own court herein noted, and by those cited from the Supreme Court of the United States.
Finding no reversible error in the record, the judgment of the court below will be affirmed.
Affirmed.