90 Ala. 1 | Ala. | 1890
One of the defenses in this case was contributory negligence. In maintenance of that defense, it was attempted to be shown that one of the rules of running the trains of the defendant corporation was, that car-coupling should not be done with the hand, but with coupling-sticks kept on its trains for the purpose; that these rules were printed and carried on its trains, and that plaintiff had knowledge of that rule, having read the book of rules. A witness was asked, if there was not such rule; and, on proof that the rules had been printed in book form, which was neither produced, nor its absence accounted for, the testimony was objected to, and he was not allowed to testify to its contents.
It is contended for appellant, that this question arose collaterally, and that therefore the rule requiring the production of the best evidence does not apply. — 3 Brick. Dig. 439, § 486. We do not so regard the question. Plaintiff’s negligence, con
This is the third appeal in this cause. — 83 Ala. 518; and 85 Ala. 203. The first three counts of the complaint, as shown in the present record, have been heretofore passed on, and each pronounced sufficient. They are not questioned on this appeal. We have also held that when, in running a train on a railroad, one of the brakemen falls sick, thus reducing the force below the requisite standard for safely handling the train, “there must be discretion and authority- somewhere to supply the place of disabled or missing servants; and no one could exercise this power so well or so prudently as the conductor in charge of the train. We will therefore treat the plaintiff as the lawfully employed servant of the company.”
When the case was first before us, it was not questioned that one of the regular brakemen on the train was sick, and that plaintiff, Propst, was discharging the duties of brakeman at the request, or under the command of the conductor. On the second trial, the proof was' much less full on the question of plaintiff’s employment by the conductor, and we held that it was insufficient to prove the averment that he had been so employed. On the third, or last trial, the proof on this subject was much fuller, both by plaintiff and other witnesses introduced by him. It fully justified the submission of the question to the jury, as one of the disputed facts to be passed on by them.
When this case returned to the Circuit Court, after the second reversal, a fourth count was added to the complaint, on which issue was joined without testing its legal sufficiency by demurrer. The last trial Avas had on the complaint containing four counts, and the defendant’s plea of not guilty, and negligence on the part of plaintiff contributing proximately to the injury complained of. .
The only errors assigned in this case are the several refusals of the court to give the charges numbered one, two, three, four and fourteen, Avritten out and asked by defendant. Charges two and three Avere properly refused, because they are argumentative, if on no other ground.—Cleveland v. State, 86 Ala. 1; Hussey v. State, Ib. 34; Perry v. State, 87 Ala. 30; L. & N. R. R. Co. v. Hall, 87 Ala. 708; Hughes v. Anderson, 68 Ala. 280.
The fourth charge requested the court to instruct the jury that they could not find a verdict for the plaintiff on the fourth count of the complaint. The substance of the complaint set forth in that count is, that “the said locomotive was moved backwards with such rapidity and want of care and caution, [that] said standing car was hit with so much or unusual force and violence, that the drawheads attached were driven back, whereby plaintiff’s arm was exposed and caught between the bumpers or deadwoods, . . . which bruised, crushed and permanently disabled plaintiff’s right arm; . . . . that the injury and wrongs aforesaid were suffered by reason of the engineer, who was an employé of said defendant; all of which wrongs and injuries defendant could and ought to have avoided by the exercise of reasonable care and diligence.”
It may be that this count is imperfect, and fails to set forth,
The first instruction asked was the general charge in favor of the defendant. Our rulings in reference to the second and fourth counts are decisive of this question. Whenever the proof authorizes a verdict for the plaintiff' on one or more of the counts in his complaint, it need scarcely be said the general charge in favor of defendant can not be given.
Affirmed.