96 Ala. 325 | Ala. | 1892
The City Court charged the jury, that if they believed the evidence, they must find for the defendant. This charge presents the only question assigned as error.
The plaintiff, Bivins, was a brakeman on a train of defendant, and was serving in that capacity. One of his duties was to set or throw the switches, when thereto commanded by the conductor. The personal injury for which this suit was brought was suffered by him in the attempt he made to get back on the train, while the train was moving. The feat attempted was customary in that kind of service, and it is not contended that the machinery of the switch .was out of
All tbe testimony is. set out in tbe bill of exceptions, and it shows tbe following state of facts: Tbe injury was sustained near Corona station. Tbe switch at that place was on an embankment, four or five feet above tbe level of tbe ground. On one side, within two or three feet of tbe SAvitch, was a trestle about seven feet high, and on tbe other tbe ground sloped up gradually to tbe level of tbe track, which it reached at a point about fifteen feet from tbe switch. Tbe sides of tbe embankment were steep, and tbe level surface at its top was wide enough, and only wide enough, to support tbe track. Tbe machinery for throwing tbe switch, together with its horizontal connecting rod, was placed on a cross-tie, which, for this purpose, was lengthened, and extended four or five feet bejumd tbe embankment. This projecting part bad no direct support. It presented twelve inches of level surface. Tbe upright rod, or handle, used in throwing tbe switch, was about two and a half feet from tbe rail of tbe track — too near to permit a person to stand on tbe inside of it while a train was passing. A person attempting to board a passing train from tbe point where tbe switch was stationed, must stand on tbe outside of the rod, or handle, and from tbat point step on tbe steps of tbe passing train.
Tbe facts stated above were testified to by tbe plaintiff himself; and bis was tbe only testimony bn these questions. He testified further, tbat be bad served the road in tbe same service, and on tbe same section, for four months prior to tbe time at which be received the injury ; tbat be bad frequently performed tbe service be was performing on this occasion, and tbat be bad never before encountered any inconvenience, or sustained any injury in such service. He stated tbat the train was moving slowly, and tbat when be bad finished throwing tbe switch, tbe rear end of tbe train was a car length and a -half distant from him, and that be thought be could have reached tbe level ground — fifteen feet distant — before tbe car would reach that point. He stated, however, in this connection, that be bad not locked tbe switch — “tbat it was tbe rule for switchmen, when they
Plaintiff’s testimony, in'immediate connection with the injury, was as follows: “That the caboose-car upon which he attempted to get had a platform and steps at each end, with hand-rails around the platform to hold by; that he first caught' hold of the hand-rails on each side of the rear platform with each hand, and placed his left foot on the lower step of the platform, and as he was in the act of drawing his right foot up to also place it on the lower step,- the leg of his breeches got caught on the switch handle in some way, which jerked his right leg, and caused his left leg to lose its footing; and in the attempt to regain it, his right foot was caught under the front trucks of the car next adjoining the caboose car, and was crushed nearly or quite off. And afterwards, while he was struggling to get on the platform, and holding on to the guard-rails with his hands, his left foot also got under the front trucks of the car next adjoining the caboose car, and was also crushed.” We haye now stated the substance of all the testimony relating to the injury and the cause of it.
In a case of suit by an employee of a railroad for an injury such as that complained of in this case, “the burden of proof is on the plaintiff to prove negligence.” — L. & N. R. R. Co. v. Allen, 78 Ala. 494, 503; M. & B. Railway Co. v. Holborn, 84 Ala. 133. See, also, Wilson v. L. & N. R. Co., 85 Ala. 269. In Bay’s recent excellent work, Negligence of Imposed Duties, the author sums up as the result of very many decisions, English and American, the following principles : “Where the obligation is not in its nature so nearly absolute as it is said to be in the case of a passenger, and the circumstances of the accident suggest, at first blush, that it may have been unavoidable notwithstanding ordinary care, the plaintiff, charging negligence, assumes the burden of proving that the defendant has, by some act or omission, violated a duty incumbent on it, from which the injury followed in natural sequence; and, in the extreme case of a carrier, that which never happened before, and which in its character is such as
In the case of Schultz v. C. & N. W. Railway Co., 67 Wis. 616, an injury was suffered by an employee in consequence of what was charged to be carelessness in overloading a car with coal. The comprany was in the habit of so loading its cars, and the employee knew that such was its habit. Held, that “If such method of loading was negligent, yet the plaintiff, having knowledge thereof, assumed the risk of injury therefrom, as one of the risks incident to his employment.” We need not commit ourselves to the full extent of this decision.
On the measure of care and diligence necessary to be observed by railroad companies towards their employees, see Wilson v. L. & N. R. R. Co., 85 Ala. .269; L. & N. R. R. Co. v. Orr, 91 Ala. 548; Richmond, & D. Railway Co. v. Norment, 10 Amer. St. Rep. 827; Pryor v. L. & N. R. R. Co., 90 Ala. 32.
The only negligence or omission charged against the railroad company in this case is, that the sill on which rested the machinery for throwing the switch extended beyond the embankment, and that there was under the extension no filling up, so as to bring the embankment up) to a level with it. It is not charged that during the five years of its use it had caused any other accident. Plaintiff was familiar with it, having been brakeman on that section of tbe road for four months. There is no piroof that machinery thus constructed is dangerous. That is left to inference. It is not explained,
Affirmed.