Huggins v. Southern Ry. Co.

49 So. 299 | Ala. | 1909

ANDERSON, J.

As the record shows that all of the appellant’s demurrers to the defendant’s special pleas, upon which there was a ruling, were sustained, except as to pleas 2, 10, and 11, we shall only consider the demurrers to these pleas, notwithstanding counsel in their brief argue the case as if their demurrers were overruled as to other pleas.

The trial court erred in not sustaining the demurrer to the second plea. It failed to set up the facts constituting contributory negligence, and was subject to the second ground of demurrer on page 17 of the record.

While we do not wish to be understood as holding that pleas 10 and 11 are good pleas, their infirmity was not pointed out by the demurrers interposed thereto.

The plaintiff got the full benefit of the second replication to the twelfth plea under the fourth and eighth replications thereto.

When the authorities declare that rules of railroads forbidding going in between cars to make a coupling and requiring the use of sticks, etc., are “reasonable” and “wholesome,” it is with the qualification or understanding that the duties required may be performed consistently with the rule. If the master fails to furnish such cars and appliances or other means to enable a compliance with the rule in order to discharge the required duty, the rule will afford no protectiion, if the duty imposed necessitates its nonobservance. — M. & C. R. R. v. Graham, 94 Ala. 552, 10 South. 283. The trial court erred in sustaining demurrers to the plaintiff’s replications 3 and 9 to the defendant’s twelfth plea.

The trial court erred in giving the affirmative charge for the defendant. There was not only proof from which the jury could infer initial negligence on the part of the defendant’s servants, but from which they could infer proximate negligence subsequent to plaintiff’s going between the cars, even if he negligently did so. There was some proof that Porterfield knew that the plaintiff was between the cars, and that he was signaling the engineer at the time of and'just before the injury, and could have avoided the said injury by giving stop or checking signal. There was also proof that the train was backed at a rapid and unnecessary rate of speed, and that the engineer knew that plaintiff was, at the time, between the cars. True, he may not have actually seen him between the cars; but there was proof that he was looking back, and could see the plaintiff when standing on the outside. Then, if he disappeared, the jury could infer that the engineer knew he had gone between the cars. If he knew he was between the cars, and he ran the train hack at a high and unnecessary rate of speed, it was for the jury to determine whether or not it was negligently hacked, and whether or not said negligence, if atiy there was, was the proximate cause of the injury notwithstanding plaintiff may have negligently gone1 between the cars.

There seems to have been considerable quibbling over the attempt to prove the contents of the contract as set out in the sixth plea. • As this case must be reversed, we need not determine whether or not the trial court committed reversible error in this particular; for, if the original is not found by the next trial, the loss and search for same should be shown by each and every custodian thereof before the admission of secondary evidence.

The judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.