112 Ala. 216 | Ala. | 1895
This action is prosecuted by the administrator of Jesse McDonald, who was a brakeman in the employment of the defendant railway company and was killed in such service, to recover damages for his death. The complaint as amended and as it stood at the trial contained two counts, the first count as amended, and the fourth original count. The defendant interposed a demurrer to the first count as amended. This was overruled by the court, and properly so; the count was not open to any of the specifications of demurrer assigned against it.
The first count sought a recovery on the alleged negligence of the engineer in handling the engine and cars at the time McDonald sustained the fatal injuries, and was intended to present a case under sub-section 5, section 2590 of the Code.
The other count — that numbered 4 — was intended to present a case under sub-section 3 of the statute, alleging that the intestate came to his death through the negligence of one Dorman, the conductor of the train on which intestate was a brakeman; that intestate was bound to conform to the orders of said Dorman and did conform thereto, and was killed while so conforming, &c., &c. No demurrer was interposed to this count. It would seem to have been open to objection in that the death of McDonald is ascribed — not to the conductor’s negligence in ordering him to make a coupling, but — to the negligence of Dorman while performing the duties of a brakeman in failing to make another coupling, which was necessary to be made before that to which McDonald was assigned could be safely attempted.
Defendant’s pleas were: “First: Not guilty. Second: Contributory negligence of. plaintiff’s intestate. Third : Contzibutory negligence, in that plaintiff’s intestate received his injuzies in attempting to couple cars while they were in motion and without a coupling stick,
Several exceptions were reserved by the defendant to the admission of testimony going to show the earning capacity of plaintiff’s intestate. We do not understand .that these exceptions are insisted on by appellant’s counsel. They are obviously without merit.
The testimony of Kemp who served on the Midland road for a few weeks in 1890 or 1891, “to learn the road, ’ ’ that he never saw a coupling stick in his life and never saw them used; and of Parker that about the time McDonald was killed, he, the witness, worked for the defendant as a brakeman on a freight train, that he was not furnished with a coupling stick of any kind,- that he did not see any brakeman use any kind of a coupling stick, while he was in the employ of the company, and that he had never seen a coupling stick like that introduced in evidence by the defendant as one of its regulation coupling sticks in any caboose or elsewhere on defendant’s right-of-way, tended both to prove plaintiff’s replication to the third plea and to rebut certain testimony adduced by the defendant; and was, therefore, properly allowed to go to the jury.
Whether McDonald had knowledge of the defendant’s printed rules forbidding brakeman to go between moving cars for the purpose of coupling them and requiring the use of sticks in making couplings, was a matter of infer
The gravamen of the 4th count is, as we have seen, that Dorman caused McDonald’s death by negligently failing to make what is called in the case “the. first coupling.” That is the averment of that count of the complaint and issue was taken upon it. If the evidence sustained it, and it was not shown that McDonald negligently contributed to his own death, the plaintiff was entitled to recover. The charges given for plaintiff all hypothesize this state of case, along with want of knowledge of the rules on McDonald’s part, and are free from fault.
The first charge refused to the defendant should have been given. It had relation alone to the fourth, count of the complaint, and directed a finding for the defendant under that count if the jury should believe that Dorman’s failure to make the first coupling was not due to his negligence or recklessness, but to some other cause which reasonably justified him in not attempting to make the coupling. The charge was not abstract. There was evidence admitted without objection that the train was driven back so rapidly that no prudent man would attempt to couple it to the stationary cars. If such was the fact, no fault or negligence could be imputed to Dorman in this connection, whatever: might be said of the engineer, and no recovery could be had under the 4th count, though the jury might find defendant liable under the first count for the negligence of the engineer.
Whatever the engineer knew or might by due diligence have known as to the exact position of McDonald, he certainly did know that the purpose of moving the train at the time was to couple onto, first, two cars which were coupled-together, and then another loose car several feet further on; and if he propelled the train with such force and violence against the two cars as to endanger brakemen attempting to effectuate this purpose, he would be guilty of negligence, though he may not have known that any brakeman was between the cars. The second
On the issues as made up and on the testimony found in this record, we cannot say the court erred in refusing to give the general charge for the defendant. It would serve no good purpose to discuss the case in this connecT tion, as both the issues and the evidence will probably be different on another trial.
The court erred in refusing the first charge requested by the defendant, and for that error the judgment is reversed. The cause will be remanded.
Reversed and remanded.