99 Ala. 438 | Ala. | 1892
Appellant was a brakeman in the service of appellee. As the locomotive drawing one of appellee’s trains approached a switch on the main line in the company’s North Birmingham yard, he was standing on the foot braces on the pilot of' the locomotive, which were twelve or fifteen inches long and were intended for brakemen to stand on when switching. It was ten o’clock at night. When about forty feet from the switch appellant says he saw it was thrown wrong for the train, and was ready to jump, when the engineer called, “Andrews, look out for that switch.” He then jumped on the track in front of the engine and took three steps towards the switch, when his leg went into a hole in the road-bed and he fell. The engine was moving at the rate of from three to five miles per hour and slowing up when he jumped off. By reason of the fall, he was overtaken by the engine, run over and injured. The hole into which he fell, averaged at least three feet deep for the distance of eleven cross-ties, and looked, appellant testified, like a trestle had been there. Appellant had never seen the hole before and did not know it was there until he fell into it. He examined it afterwards. The testimony also tended to show that where he jumped off, and thence in the direction of the switch, the track was on an embankment which sloped off on the right side; that on fhe right there were two other
The cause of action relied on is the defective condition of the roadway, in .that the hole in which appellant fell was negligently permitted to be and remain therein. The defense relied on is contributory negligence. That defense was not specially pleaded, but the parties, without objection, actually tried the case upon that issue, which brings it within the rule announced by this court in Farmer’s Case, 97 Ala. 141. The filing of the special plea was thus waived by the appellant. The special act, on the part of appellant, insisted on by the defendant as constituting contributory negligence, was the act of jumping off on the track in front of the moving-engine and undertaking to go upon the track to the switch. As pertinent to the inquiry, whether such conduct on his part was negligence or not, he offered to prove by his own testimony that it was the custom and practice on defendant’s road and on well regulated railroads for brakemen, when doing switch work in the yard limits, to stand and ride on the pilot of the engine and to leave the pilot to do switching before the engine came to a full stop; and to show it was the custom and practice of engineers on defendant’s railroad and well regulated railroads not to bring their .engines to a full stop for brakemen to leave the pilot when doing switch work. The court sustained an objection to the. introduction of this testimony, and appellant excepted.
In Warden v. L. & N. R. R. Co., 94 Ala. 277, we used this language: “The fact that one is in the habit of doing an obviously dangerous thing does not make his act .any the less a dangerous one. The fact that many or all of a limited class of persons customarily ride upon the pilot of an engine does not alter the characteristic of obvious peril which the law imputes to that position. It is a negligence per se for persons to walk on the track of railroads; doubtless many
In K. C., M. & B. R. R. Co. v. Burton, 97 Ala. 240, the law in reference to the admissibility of custom and usage of railroads, as affecting the question of negligence, is also fully stated, to which we refer without quoting.
Under the evidence in this cause, we are of opinion that the plaintiff’s conduct in attempting to go to the switch on the track in front of the moving engine, under the circumstances detailed by himself, involved obvious peril of his safety, and was per se negligence, which, under the principles declared in Warden v. L. & N. R. R. Co. and K. C., M. & B. R. R. Co. v. Burton, supra, could not have been relieved by proof of the custom which he offered to introduce. It follows that, conceding the existence of such a custom, the defendant was entitled to the general affirmative charge which the court gave. The judgment of the City Court is affirmed.