43 So. 566 | Ala. | 1907
The complaint, as originally filed and as amended, contained 16 counts. A number of these counts were eliminated in various ways, and, while the record before us is not free from some confusion in its makeup, yet it appears that the case was tried on issues made by pleas numbered from 1 to 7, inclusive, as amended, to counts 9, 10, 11, 12, 13, 11, and 16, as amended. The defenses set up by these pleas were the general isiaue and that of contributory negligence.
Under the issues in the case and in the light of the evidence introduced by the plaintiff, it was competent for the defendant to show by the Avitness John Cooper, on his cross-examination, that the deceased was cautioned by one Gallagher, Avho Avas foreman of the gang crew, working in the cinder pit, Avliere the deceased Avas at work at the time of his injury. It Avas likewise competent for the defendant to sIioav by the Avitness Amos Anderson, Avho worked in the cinder pit Avith the deceased, what Avas the duty of the employee at such Avork Avhen an engine was approaching, and also to show the instructions given by the foreman of the gang Avhen an engine approached. If Avas likewise competent for the defendant to sLoav by the Avitness Charles Roberts that,
It was averred in the defendant’s pleas of .contributory negligence that the deceased, after seeing the engine approaching him, had time and opportunity of escaping in safety from the pit before it reached him. Under this averment it was competent to show by tlie witness John Gordon that the deceased had time, after seeing the engine approaching him, to get out of the pit in safety. The witness Jackson. Orr, in the absence of Gallagher, .was boss of the pit gang, and should have been permitted to testify as to the duties of the deceased while working in the pit when an engine approached. It was competent for the defendant to show whether or not Jim Cunningham, the hostler, who was on the engine, was required to obey the instruction of Duderer. The plaintiff had introduced evidence by one Ed Reeves that it was Cunningham’s duty to obey said Duderer, and it was certainly competent for the defendant to contradict this witness by other competent evidence.
The court in its oral charge to the jury instructed the jury “that, if they found that the plaintiff was entitled to damages, they might calculate on such sum as, being put to interest, will each year, by taking a part of the principal and adding it to the interest, yield one-half of plaintiff’s intestate’s wages per annum, and as that the whole remaining principal at the end of 19.49 years, added to the interest on this balance for that year, will equal one-half of plaintiff’s intestate’s wanes for that year, so there would he of the principal nothing left at the end of the 19.49 years.” This part of the court’s oral charge was excepted to by the defendant. While the bill of exceptions does not so state, yet it is admitted by the appellant that the American Mortality Tables were introduced in evidence. But it is contended by appellant that the court erred in assuming and so stating to the jury that the deceased’s life
While there is some conflict in the evidence as to whether the engine, when approaching the pit, came to a full stop at the first water plug which was about 25 feet from where the deceased was.at work in the cinder pit, yet the evidence is without conflict that signals by blasts of the whistle were given by the approaching engine and that the deceased, saw the engine approaching; that those who were at work with the deceased in the pit got out of it; that he (deceased) was told by his coworkers and ordered by the boss to get out of the pit, and all of this in ample time for him. to have escaped in safety, and thereby avoided the injury, yet he remained in the pit, continuing to work, until the engine came upon him, when he attempted to escape by jumping out of the pit, notwithstanding the fact, even at this critical time, he could, have saved himself from injury by stooping down in the pit and allowing the engine to pass over him, as he had done on former occasions. Under this undisputed evidence, we can see no escape from the conclusion that the deceased, as matter of law, Avas guilty of the negligence AAdiich contributed proximately to the injury AAdiich resulted in his death, and the court, as requested in Avriting by the defendant, should have so charged the jury.
There was no evidence shoAving that the injury complained of Avas wantonly inflicted. For the errors point
Reversed and remanded.
