69 Ala. 106 | Ala. | 1881
In M. & C. R. R. v. Copeland, 61 Ala. 376, the undisputed facts' were, that plaintiff’s intestate attempted to cross defendant’s railroad track, by passing under the coupling of two box cars, which were coupled together and constituted part of a freight train, then standing temporarily on the side track, placed there with locomotive and steam up, to .allow a passenger train to pass it. "While in the act of passing-under the coupling, the train was moved, and he was knocked down, run over and killed. There was conflict in the proof as to whether the required signals were, or were not given; but upon the assumption that the signals required by statute were not given, and upon a consideration alone of the undisputed facts, we held, that the attempt 'thus to pass between the cars of a train, which he must have known was liable to be moved, could not be classed as less than negligence, bordering on recklessness. “It certainly contributed,” we said, “proximately contributed to the very sad disaster which followed. If the usual ■signals had been sounded, probably the intestate could have extricated himself in time to save his life.. If he had not attempted to cross over between the cars, he .would have been in no peril, and suffered no injury. Both were in fault.” Our decision in that case was, that there could be®no recovery .against the railroad company, although there was on its part negligence in failing to give the signals required by statute, immediately before, and at the time of the moving or departure of ■the train, the. injury not having been inflicted wantonly or intentionally.
Applying the same principles to the facts of this case, as ¡shown by the evidence of the plaintiff, and deducing therefrom ■every inference advantageous to him, which may be fairly and
As was said by Black, C. J., in R. R. Co. v. Aspell, 23 Penn, St. 147: It has been a rule of law from time immemorial, and it is not likely to be changed in all'time to come, that there can be no recovery for an injury caused by the mutual default of both parties. When it can be shown that it would not have happened except for the culpable negligence of the party injured, concurring with that of the other party, no action can be maintained.” The negligence of the employees of the defendant's— the failure to sound the whistle or to ring the bell, as required by the statute, immediately before and at the time of leaving the depot, involved the defendants in liability for all injuries to person or property, resulting from the failure. Of itself, and in itself, it was negligence. — M. & C. R. R. Co. v. Copeland,. supra; 2 Thomp. Neg. 232, § 8. The statute does not relieve whoever may be in peril of injury from the neglect of the servants and employees of the railroad company to observe its requirements, from the duty and necessity of taking ordinary care to avoid the injury; nor does it modify or abrogate the principle, that a plaintiff shall not recover for unintentional
.The only injury which could have resulted to the plaintiff, from the neglect to give the signals for the departure of the train, was the inconvenience of being carried from his home; the loss of time, and the labor or expense of returning. These were the immediate, direct consequences of the neglect. To .avoid them he was not justified in putting in jeopardy life or limb; and if he should, and other injury result, the compensation he can rightfully demand is not increased. What would have been his rights,'if there had been the presence or pressure of impending peril of personal injury, and to avoid it, he had leaped from the train; or, what would have been his rights, if under the advice, direction, or command of an agent or employee of the defendants, he had left the train as he did, are not questions now for consideration. In the absence of such peril, or of such advice, direction, or command, or of some other circumstance, lessening the carelessness of the act, or giving to it the color of necessity, leaping from a moving train by all the .authorities is esteemed negligence, debarring a recovery because of the prior negligence of the servants or agents of a railroad company. The question is fully considered and discussed in authorities to which we refer. — Lucas v. N. B. & T. R. R. Co., 6 Gray, 64; Morrison v. E. R. Co., 56 N. Y. 302; Burrows v. E. R. Co., 63 N. Y. 556; R. R. Co. v. Aspell, 23 Penn. St. 147; Damont v. N. O. & C. R. R. Co., 9 La. An. 441; J. R. R. Co. v. Hendricks, 26 Ind. 228; Dougherty v. C. B. & Q. R. R. Co., 86 Ill. 467; Lambeth v. N. C. R. R. Co., 66 N. C. 494; Doss v. M. K. & T. R. Co., 59 Mo. 27; Nelson v. A. & P. R. R. Co., 68 Mo. 593; L. S. & M. S. R. R. Co. v. Bangs, 47 Mich. 470.
The Circuit Court erred in several of its rulings, and espe•cially in refusing, on request, to charge the jury on the evidence •to find a verdict for the defendants.
Eeversed and remanded.