110 Ala. 143 | Ala. | 1895
The sixth count of the complaint identifies the person alleged to have been gulity of the negligence causing the injury as the person in charge of the particular freight train which had been stopped on the track, at the specified time and place, and with which intestate’s train collided; We deem it unnecessary to decide whether or not this is a sufficient identification of the person charged with the negligence. See Railroad Co. v. George, 94 Ala. 214. The amendment of the second plea, after demurrer sustained, by which the words, “known to plaintiff’s intestate,” were inserted, was necessary to make the plea good; and the demurrer to the plea, as the latter was originally filed, was properly sustained. By the ruling of the court on demurrer, the defendant was required to amend its third plea by inserting the word “negligently” where the same occurs in the plea as copied in the transcript; and to amend its fourth plea by inserting the words, “and negli-. gently violated said rule as hereinafter set forth, ” where those words appear in said plea, as copied. These pleas set up, in terms, a rule of the defendant known to plaintiff’s intestate, in force at and before the injury, and applicable to the place of the injury, which was a water station, and to the train of which plaintiff’s- intestate was engineer, at the time he was killed by the collision of that train with another, by which rule it was required that such trains must approach such stations “under control, expecting to find the main track occu
That the rule, as set up in the pleas, is a just and reasonable one, no one will, for a moment, gainsay. The end and obvious tendency of.its promulgation and enforcement was the all-important one of avoiding great peril of life and property. The highest considerations of duty to its employes, the general public, and itself,
To these pleas (2, 3, 4 and 5) plaintiff filed replications numered 1, 2, 3; and 4. The third and fourth went out of the case on demurrer. After demurrer overruled to the first and second, issue was joined on them. The first set up that defendant habitually permitted said rule to be violated, and did not require the observance of said rule by its employés in the running of defendant’s trains at Phelan Station, where the injuries occurred; the second, that said rule was addressed to and was obligatory upon defendant’s conductors only, and was not addressed to or obligatory upon defendant’s engineers in charge of its engines. There was no general replication to the pleas, and. the cause was tried alone, as far as the pleadings show, upon the issues tendered by these two replications. Their sufficiency was first challenged by demurrer, complaining, substantially, that the first failed to state the facts which manifested the defendant’s permission of the violation of the rule ; that it does not appear that such permissive violation existed prior to the injury, nor that it existed between the 10th and 18th days of May, 1891; that it does not appear that such permissive violation extended to the plaintiff’s intestate ; that it does not appear that defendant released the intestate from the agreement set up in the fifth plea, and did not require its observance by intestate after the agreement was entered into ; that said replication is no more than a traverse ; that, as to the second replication, the fifth plea requires a sworn denial of the execution of the agreement set up therein, and there is no such denial; that the fact that the rule was not addressed to the engineers does not show it was
But, proceeding to the agreement in question, this court has heretofore settled the law,quite clearly on this subject. In Railroad Co. v. Hissong, 97 Ala. 187, we had under consideration a rule which prohibited car-couplers to go between cars to couple them, a violation of which was alleged against the plaintiff as contributory negligence. The plaintiff’s effort was to avoid the effect of the violation by showing a long-continued custom of defendant’s employes to violate the rule, under certain circumstances, and to establish the inference therefrom of defendant’s acquiescence in such violations, and a waiver of the observance of the rule. The plaintiff, a very short time before the injury, had entered into a written agreement with the defendant binding himself to observe the rule. This court, by Justice HaralsoN, discussed the
If it be conceded that a special replication, setting up matter of excuse for the failure to comply with the rule, was waived by the course the trial took, there was no evidence whatever of such an excuse. There is no evidence whatever of an effort on the part o'f the engineer to keep the train under control, nor of the failure of any brakeman or other trainman to respond to any call made by him for brakes or other assistance. The fact that brakemen were not at the brakes as the train approached Phelan is no evidence of action on the par.t of the engineer calling them to their places. It rather- implies, if anything, non-action on his part in that regard. We can find in the record no evidence indicating in the slightest degree a legal excuse for not complying with the rule. That the conductor of the train standing at Phelan was guilty of culpable negligence goes without saying, under the evidence adduced ; but, as the case now comes before us, the contributory negligence of the intestate bars recovery by the plaintiff. The general affirmative charge should have been given for the defendant. We deem it unnecessary to pass upon the several assignments of error.
Reversed and remanded.