91 Ala. 487 | Ala. | 1890
The concession that defendant’s 6th and 7th pleas were well pleaded, and that the demurrers to them were not well taken, and should not have been sustained, will not avail the appellant. It is quite manifest that the defendant had the full benefit of the matters thus specially pleaded under the general issue, which was also pleaded; and this being the case, the error, if any, in sustaining demurrers to the plea, will not operate a reversal of the judgment.—Phœnix Ins. Co. v. Copeland, 86 Ala. 561; Manning v. Maroney, 87 Ala. 563; L. & N. R. R. Co. v. Hall, Ib. 708; Wadsworth v. Hodges, 88 Ala. 500.
The court, in its general charge, instructed the jury, that-“the measure of duty the defendant owed the plaintiff, in respect to putting in on the repair track the car which collided with the cars about 'which plaintiff was working, was that defendant should exercise that degree of care which very careful and prudent men exercise in their own affairs.” This, under our decisions, is a correct statement oí the care which it was the defendants duty to exercise, in view of the position of peril occupied by plaintiff, and the dangers incident to the-thing being done by defendant’s employés.—Tanner v. R. R. Co., 60 Ala. 621; Gothard v. Railroad, 67 Ala. 114; Cook v. Railroad, Ib. 533.
The complaint contains four counts. The first bases the right of recovery on the negligence of the defendant with respect to a defect in the brake of the car which collided with that upon which plaintiff was employed. The second and third counts assert a right of recovery, because of the negligence of one McNutt, an employé of the defendant, and at the time in charge of the moving car, in not arresting its progress short of the point of the collision. The fourth count, as we construe it, charges that, while plaintiff was engaged in repairing a car which stood on the “dead,” or repair track of the defendant company, another car was negligently run in, upon and down said repair track, by some person in the service of the defendant, who, at the time the said car was run on and down that track, was in superintendence and control thereof. We understand this count to aver that the act by which the momentum was given to the car, which carried it-on to or along the dead track, was negligently done, in such sort that too great speed was imparted to it. We concur with the trial court, that a recovery under -this count might be predicated on the negligence of the engineer, if he was negligent, in switching the car from another on to the dead track. Charges 1, 7,12 and 13, requested by the defendant, proceeded on the theory, that no recovery could be had under the fourth
The first count of the complaint is drawn under clause 1, section 2590 of the Code, giving a right of action for an injury “caused by reason of any defect in the condition of the ways, works, machinery or plant, connected with, or used in the business of the employer or master,” which, as declared in a proviso to the section, “arose from, or had not been discovered or remedied, owing to the negligence of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition.” In line with a former intimation, we now hold, for the reasons then given, that the onus of proving that the defect complained of arose from, or had not been discovered or remedied owing to the negligence of the defendant, or some employé of the defendant charged in that behalf, was upon the plaintiff, and no recovery could, be had under this' count without such proof. C. & W. Railway Co. v. Bradford, 86 Ala. 574. There is evidence in this record that the brake was defective; but this testimony exhibits no tendency whatever to show that the defect was caused by the negligence of the defendant, or any employé, or had not been discovered or remedied because of any negligence on the part of the defendant or its employés. Without such evidence, no recovery could be had under that count, and the court should have so instructed the jury, as requested in the 4th charge asked by the defendant.—A. T. & S. F. R. R. Co. v. Ledbetter, 21 Amer. & Eng. Railroad Cases, 555.
It is in evidence that McNutt was assistant yard-master, and as such was charged with the duty, among others, of having-cars which, upon inspection, had been found to need repairing-, run in upon the “dead,” or repair tracks of the company. It was upon him to discharge this duty with at least such ordinary care as is involved in having the cars, while being moved into the yard, sufficiently manned to control their speed, and prevent them colliding with other cars. A failure to discharge this duty, either by omitting to put a brakeman on a car being thus moved, or to put an incompetent brakeman on it, is negligence for which the defendant is responsible under the three last counts of the complaint. And it can make no difference in principle whether he put another on the car, or assumed to discharge this duty in person. If he was not himself a capable and competent brakeman, he was lacking in that care, the observance of which the law imposes on him in undertaking
Whether he was in fact a competent brakeman, was a question for the jury. Pertinent to this inquiry, of course, was his physical capacity, in connection with common knowledge as to the nature of the apt of applying a car-brake. That he had only one arm, it seems to -us, is evidence tending to show his incapacity to perform the act; and the jury might have been justified in reaching the conclusion that he was not competent to the performance of the duty he undertook, especially when regard is had in this connection to the fact that there is absolutely no proof of a defect in the brake, except that it would not effectively respond to his efforts; but, on the contrary, close inspection, both before and after the accident, failed to disclose any defect whatever, notwithstanding he and other witnesses deposed to his physical capacity. Many of the charges requested by the defendant would have required a verdict for the defendant, although the jury might have believed that McNutt was guilty of negligence in attempting to apply the brake himself, instead of having a competent man to discharge that duty. Thus, charges 8, 9, 13, 17,18, 19, 20, 21 and 22 involve the idea that no recovery could be had on account of McNutt’s incompetency as a brakeman, and were properly refused. It is not a question of the negligence of the-defendant company in the employment of McNutt — negligence which is not counted on in the complaint — but of McNutt’s ow'n negligence in failing to put a competent and physically capable brakeman on. the car about to be moved — negligence Avliich is counted on in the complaint.
Charges 14, 15 and 16 requested by the defendant were bad, in that they, in effect, take a distinction between the measure of a railway company’s duty in respect to the condition of the cars which belong to it, and those which, though not its property, are connected with, or used in the business of the company. — Code, § 2590.
Whether to make a “running switch” is, fer se, negligence, is an immaterial inquiry on this appeal. To make such a switch, in the manner which one phase of the evidence tends to show characterized that mode in this case, we do not doubt was negligent — the car, according to this aspect of the testimony, being switched upon and along the “dead” track, at a speed of eight or ten miles an hour. This consideration serves to determine the assignments of error based on the refusal of the trial court to give charges 23 and 24, against the appellant.
The 4th charge, which was a general affirmative direction to find for the defendant under the first count of the complaint, should, as we have seen, have been given. It may be, indeed it is probable, that the refusal to give it did not injure the defendant, since it would seem more reasonable that the jury found against the defendant on the 2d, 3d and 4th counts, the averments of which found support in the tendencies of the evidence, than that they so found on the allegations of the first count, which were not supported by any aspect of the testimony; yet we can not lefel that assurance that such was in fact the case, which would justify us in holding the error committed in refusing to give the 4th charge to have been without-injury to the defendant. For that error, therefore, the judgment of the Circuit Court is reversed, and the cause remanded..
Reversed and remanded.
