64 So. 175 | Ala. Ct. App. | 1913
The appellee, Avho Avas plaintiff below, was, at the time of the injuries complained of, in the employ of appellant railroad company in the capacity of a brakeman, and at said time, Avkile in the discharge of his .duties as such, Avas on top of a train of freight cars for the purpose of putting on the brakes and setting-some of these cars on a side track to which they Avere being switched at the station of Phil Campbell; and in attempting to pass from the top of one of these cars to the next one, which had been uncoupled from it Avitkout his knoAvledge, and Avkich, just as he reached.the opening between the 1;avo, was being pulled away by the engine from the car he Avas on, so that he, not anticipating such a condition, but expecting to step, as he had done, from the car he Avas on to the next one, was, when he got to the end of the one he Avas on, and discovered, to his surprise, that the next car was being pulled away from it, unable to recover himself and stop. His only chance therefore, under the circumstances, to avoid walking off the end of the car he Avas on and thereby falling between the two, Avas to jump, if he could, to the next car; but it had reached such a distance from him that he failed to reach it by his jump, and as a result fell between the two cars, receiving the severe injuries complained of.
As before stated, Whitlock was directed by the conductor to uncouple and place the cars on the siding in the same position as the ones previously on there without stating what that position was, and Whitlock, who knew, informed plaintiff, who did not know how the previous ones had been setting, and. upon plaintiff’s request for information with respect thereto, that two were to be placed above and two below the road crossing. As a matter of fact this was true; but, while the two above or north of the road crossing were to be left coupled together, the two below or south of the road crossing were to be left apart or separated from each other by some distance. We are of opinion that Whit-lock was negligent in not explaining more fully to plaintiff in this particular; for from the information imparted it would be natural for plaintiff to assume that the two below the crossing were to be left like the two above the crossing had been left, coupled together; and Whitlock was negligent in not imparting to plaintiff more specific information in this particular before uncoupling the two cars below the crossing, and thereby doing an act so obviously dangerous to the safety of the brakeman on top of the cars, who did not know and had not been informed, as Whitlock should have known, that the uncoupling at this point was to be made; and we are of opinion that Whitlock, under the circumstances,
There was no count predicated on willfulness or wantonness, and no evidence to sustain it if there had been, and hence there was no question of punitive damages in the case. The jury, in fixing the damages, should therefore have been limited to the assessment of such damages as would reasonably compensate the plaintiff for his loss of time from work, his decreased earning capacity, and the mental and physical pain resulting from the injuries received, which were the only damages claimed in the complaint. The court, however, in charging the jury on the subject of damages, charged
Reversed and remanded.