Huggins v. Southern Ry. Co., 41 So. 856

41 So. 856 | Ala. | 1906

ANDERSON, J.

— Without determining the sufficiency of the sixth plea, it was not subject to the grounds of demurrers assigned. And -what we say applies to the eighth plea also. The ninth plea was good. It charges the plaintiff with going between the cars to do the coupling when it was unnecessary, and that his going between the cars was the proximate cause of his injury. If he could have made the coupling without going between the cars, he should have done so, and should not have adopted a more hazardous or dangerous way to do so.

The demurrer was properly sustained.to the third replication to the eighth and ninth pleas. It does not aver that the order was given by one wlm had the authority to order a violation of the rules and whose orders it was the plaintiff’s duty to obey.

After the evidence was in, but before the case was given to the jury, the plaintiff asked leave to amend the complaint by adding counts 7 and 8. The only limitation upon the right of a plaintiff in a civil action at law to amend his complaint at any time before the cause is finally submitted to the jury, and they have retired, is . that the form of the action must not be changed. There must not be an entire change of parties, nor can there be the substitution or the introduction of an entirely new cause of action.—Ga. Ry. Co v. Foshee, 125 Ala. 199, 27 South. 1006; 4 Mayfield’s Dig. p. 448, § 165, and cases there cited. It would be error without injury to deny the amendment, if it was but a repitition of what was in the original complaint. So, too, has it been held not to be error to refuse an amendment offered after tlie evidence of tlie plaintiff had closed and which was supported by no testimony.— Beavers v. Hardie, 59 Ala. 570.

The negligence charged in the amendment was a neglect of duty on the part of Porterfield by allowing or permitting the cats to he run back. The negligence as charged in the original complaint on the part of Porter-field was, in count 2, that he negligently ordered the plaintiff to couple the cars; third, that lie directed or signaled the engineer to back up; and the fourth is like unto the third, with an averment of wantonness. The amendment was, therefore, no repitition or substitution of the oiiginal complaint; nor can avc say that the amendment was unsupported by the evidence. True, the defendant’s evidence tended to show that the engineer was acting upon the signals given by the plaintiff; but the plaintiff’s evidence was to the effect that the engine and oars came back upon the signal or direction of Por-terfield, who had ordered plaintiff to make the coupling, who knew where he was, when the cars were being backed, and that the cars came back with considerable force, knocking the other cars some distance. Now if the engineer was acting upon the signals of Porterfield, and it was true that lie ordered the engine and cars back, it was clearly an inference for the jury to determine whether or not there was negligence on the part of Porterfield, knowing the peril of the plaintiff, in failing to signal or direct the engineer to stop or slacken the speed of the engine and cars before striking the detached cars. The trial court erred in not permitting the amendment.

There was no error in the ruling of the trial court upon the taking of the evidence of witness, Ed.Davis. He was a railroad man, and could give an opinion as to coupling cars. Besides, he had testified on the direct examination what cars could be coupled without .going betAveen them, and the defendant had the right to ascertain if it was necessary to go betAveen these cars to make the coupling in question.

We cannot pass intelligently upon the assignments of error growing out of the examination of the plaintiff as a Avitness, as there is considerable confusion in the record as to the execution of papers by him. Wm. Hagin testified that plaintiff delivered him an application, but that he did not see him sign it. This was no proof of the execution; but the bill of exceptions does not disclose what paper Avas introduced—does not show that it- was the paper exhibited to the plaintiff when a Avitness. Neither does the record shoAv that the paper purporting to be signed by the plaintiff was ever introduced, or, if so introduced, that it was the one the execution of which was proved by I-Iagin. It seems that tAvo papers were introduced when Hagin 'was on the stand, but Avhether either of them Avas' the one set out with plaintiff’s testimony avc cannot say. If such Avas the case, Ave cannot identify it as the first or last one testified to by Hagin.

There Avas no error in permitting the witness Sexton to testify as to the condition of the cars and to describe the couplings, as the numbers corresponded with the two betAveen which plaintiff was hurt, as identified by the witness Porterfield.' There Avas no error in permitting the Avitness Porterfield to testify to Avhat he told plaintiff about going betAveen' the cars the day he started to Avork,-and of his calling attention to the rules. Nor was there any error in permitting the Avitness to testify that the cars Avould couple without the use of the lever, or that it could have been made without the plaintiff putting his hand or arm between the couplers.

There was no error in permitting the introduction of the statement signed by Neely and Beaverly. It is true it was not signed by the plaintiff; but Neely testified that, AArhile he declined to sign it, it was read over to him and he admitted that it was correct.

Charge 7, requested by the plaintiff, was properly refused. If not otherwise bad, it could have no application to the case under the complaint upon which the case was tried, as there Avás no evidence of Avantonness on the part of Porterfield growing out of any act or omssion set out in the complaint.

Charge 10, requested by the plaintiff, was properly refused. If not otherwise bad, it seeks a recovery, whether the defect Avas the proximate cause of the injury or not. It makes no difference liow defective the car was, unless said defect was the proximate canse of tbe injury.

We cannot intelligently consider charge 11, refused to the plaintiff, on account of the confusion of the evidence relating to the execution of the contract.

Charge 12 was properly refused, and is fully covered by the discussion with reference to the amendment to the complaint. The complaint upon which the case was tried had no averment of a failure of Porterfield to stop the cars. What we say as to charge 11 relates to charges 13 and 14.

Charge 16, requested by plaintiff, was properly refused. If not otherwise bad, it gives the plaintiff the right to recover, although he may have been guilty of contributory negligence.

The fallacy of charge 17 is shown in what we say as to charge 12.

Charge 18 was properly refused. If not otherwise bad, it was no implied order to go between the cars when told to couple them, when he could so do without going between them.

■ There was no error in refusing charges 20 and 21, requested by the plaintiff.

Charge 12, given at the request of the defendant, simply required proof of the allegations of count 4 before there could be a recovery thereunder.

Charge 14 was properly given for defendant. It simply instructed the jury that plaintiff could not recover under the fifth count if the plaintiff was negligent in going between the cars, for his going in between the cars was the proximate cause of his injury, and if he did so negligently that would be a good defense to the fifth count, which averred simple negligence.

There was no error in giving charge 15, requested by the defendant.—4 Mayfield’s Dig. 300.

Charges 16 and 19 assert the truth ,and, while we have heretofore declined to reverse the trial court for refusing such charges, it is not reversible error to give them. .

Charge 18, given for the defendant, asserts the law.—M. & C. R. R. Co. v. Graham, 94 Ala. 545, 10 South. 283.

Charge 20, requested by the defendant, was the law.

There was no error in giving charges 21 and 22 at the request of the defendant.

There was no error in giving charge 23, requested by the defendant. Porterfield may have given him the order to couple, yet it would not justify him in going between the cars, unless he had to do so to comply with the order.

Tlieie was no error in giving charge 25, requested by the defendant. If there was a custom among the operatives violative of the defendant’s rules, the defendant could not be bound by the custom, unless it knew and acquiesced therein.

There was no error in giving charge 26, requested by the defendant.. If plaintiff could have made the coupling without going in between the cars, he was guilty of contributory negligence in going in between them.

There was no error in giving charge 27, requested by ihc defendant. Nor was there error in giving charge 29.

Reversed and remanded.

Weakley, O. J., and Tyson and Simpson, JJ., concur.