137 Ala. 319 | Ala. | 1902
This is a suit by the appellee, Peter (loss, to recover damages for personal injuries received by him AA’hile iii the employment of the appellant Railroad Company, as a locomotive engineer. The complaint contained Iavo counts, but the case Avas tried alone upon the first count, Avhich charged that the injury complained of aaus caused by the negligence of the defendant’s fireman and alleging that the fireman Avas a person in charge or control of the engine at the time the injury was indicted. The plaintiff’s right of action is based on subdiA’ision 5 of section 1749 of the Code, known as the Employer’s Liability statute, and the principal question here presented for our determination, is, AA'hether under ,the evidence in the case, the fireman Avas a person in charge or control of the locomotive AA’ilhin the contemplation and meaning of the statute.
It has been decided by this court that under certain circumstance's the* fireman of an engine may be in charge or control of it Avithin the meaning of the stat- ■ ute, as in'the case of Brown, Admr. v. L. & N. R. R. Co., 111 Ala. 275; Avliere the duties of the fireman requireW'idm to keep a lookout in the SAvitching. of cars, and tp repeat to the engineer signals given to him, and to notify the engineer of the perilous position in whih at any ti,e the switchman might be placed, in his re
A fireman on locomotive under his ordinary or general duties as such, in his relation to the engineer, while the latter is present and in charge of the engine, can not be said to be a person who has the charge or control. On the contrary, the engineer is the person in charge or control of the engine, a'iid the fireman is subordinate in his position and relations.
The facts show that the plaintiff received his injury while under the engine for the purpose of packing a hot fire box. The engine with the train it^ was drawing had stopped at a watering station, and\while the fireman was engaged in the performance of hishduty of ■replenishing the water supply in the engine’s tank, the plaintiff went under the engine to repack the hotyfire box. The necessary supply of water having been\obtained, the fireman got down upon the ground by rim
As to the duties of the fireman, the plaintiff testified as follows: “His duties gave him the right in my absence to stay in charge or control of the engine and to perform any act that became necessary while he was in charge. The steam cock might have been knocked off in the cab. It would then have been his duty to have notified me about it, or to have seen that he did not allow the engine to start off — to see that no one else would start it, and to see that he' didn’t do it without my orders. He was in charge of the engine as it stood. He had not the right to move her or to allow any one else to move her. It was part of his duty to watch the engine and to keep intruders off. He had no right to move the engine without my instructions or those of the persons in charge and there was no one else in charge but myself. * * * * * At the time of the accident I was under the engine, and the fireman in-two feet of me and under these circumstances the conductor has no right to tell the fireman to move the engine.
Appellant’s witness, C. B. Gifford, testified: “When the engineer is away from the engine and the engine
'The facts without conflict show that the fireman was in the engine cab in obedience to the command of the plaintiff, and there to carry out the orders of the latter while he was under the engine for the purpose of packing the hot box. The fact that -the engineer was under the engine while the fireman was in the cab did not change their relations, one to the other, as to authority and control. In point of superiority, the engineer was as much present and in charge and control of the locomotive as if he had been on his seat in the cab directing the- fireman in the performance of some act. It is not in the power of the engineer as long as-he is present, by any act of his, to change the relationship between himself and the fireman, as to superior authority in the management and control of the locomotive, so as to fix a libility on the master for the negligent conduct of the fireman. The statement of the engineer that the fireman was in charge of the locomotive at the time of the accident, can be regarded as nothing but the opinion of the witness, and the statement of an erroneous conclusion on the undisputed facts in the case. The court erred in refusing the general charge requested by the defendant, and the judgment will be reversed and the cause remanded.
Reversed and remanded.