67 So. 513 | Ala. | 1914
This action was brought by the appellee, employed by the appellant as a motorman on one of its street cars, for injuries sustained in a collision of said car, which was at the time being operated by said appellee as such motorman, with an engine on the track of the Louisville & Nashville Railroad; the said accident occurring at the crossing of the two- tracks.
The complaint originally contained four counts, but counts 3 and á were charged out by the court at the request of the defendant (appellant here). Counts 1 and 2, upon which the cause was submitted to the jury, were framed under subdivision 1 of the Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, § 8657]) ; the first relying for recovery upon the defective brakes on the car, and the second upon the defective car itself.
Plea 3 charged the plaintiff with negligence which proximately contributed to his alleged injuries in this: “Plaintiff, knowing of the existence of the alleged defect, and knowing that, in order to stop the said car before it would get in such a position as to be struck by any engine or train which might cross the crossing at which the said collision occurred, efforts would have to be made earlier than would be the case had such defect not existed, negligently deferred making any effort to stop the said car soon enough to prevent the same from getting in such a position as to be struck by the said engine, as alleged therein.”
The negligence charged is in substance that the plaintiff waited until too late to attempt to stop the car; that he deferred making any effort to stop the car until too late.
A careful examination of pleas 4 and 6 convinces us that the gist or substance of these pleas is the same as that of plea 3, expressed in different language. It is insisted, however, that pleas 4 and 6 set up a violation of a rule of the company as to stopping at such crossing and waiting for signal to cross, etc. While this is true, yet such averments are joined with averments of the character found in plea 3, and would therefore be of no avail without proof also of those of such character as in plea 3. The pleas, therefore, relieved defendant of nothing required by plea 3, but required proof
The fact that the rule added precautions as to starting again after stopping is immaterial, of course, when no stopping is shown. True, plea 6 makes reference to the speed of the car. at the time plaintiff first undertook to stop the same, but such averments of the plea show that they are rather of evidential character of the same matter set up in plea 3; that, is, in substance, that plaintiff commenced stopping the car too' late.
It is therefore unnecessary that we pass upon the sufficiency of pleas 4 and 6, as we are of the opinion that the defendant received the full benefit thereof under plea 3, which did not impose upon defendant some of the burdens of each of said pleas, and which imposed no burden not imposed by both of the others. If there was any error in the ruling of the court as to said pleas — a question not determined — it was without injury.
The court refused to give to the jury, upon defendant’s request, the following written charge: “(4) The court charges the jury that if you believe the evidence in this case, in the event you find for the plaintiff, you cannot award the plaintiff more than' nominal damages
For the error indicated, the judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.