Louisville & Nashville Railroad v. Smith

129 Ala. 553 | Ala. | 1900

DOWDELL, J.

The assignments of error in the record to the ruling’s of the court upon demurrer and motion are not insisted upon in argument by appellant; indeed, the insistence by appellant is confined to those assignments of error based upon the refusal of the court to- give the several written charges, pointed out, requested by the defendant in the court below, and our consideration of the case will, therefore, be confined to those assignments.

■As to the general affirmative charge requested hv the defendant, as well as the affirmative 'Charge as'to the third count of the complaint, we are not prepared to say, upon a consideration of the entire evidence introduced upon the trial, that it does not admit of different conclusions under the issues made by the 'pleading. The general, charge should never 'be given where there is any conflict in -the evidence as- to- any material fact in issue upon which a recovery may be had, or where the evidence fairly admits of a conclusion or inference which may he drawn by the jury adverse to the right of recovery by the party requesting such -charge.

Charge No. 3, requested by the defendant and refused by the court, though somewhat broad in statement, nevertheless, in our opinion, contained a correct proposition of law, and which, when referred to the evidence in this case, was neither abstract nor misleading. The complaint charges negligence in the control and superintendence exercised over the car from which the plaintiff is alleged to- have been thrown or caused to fall, and in his evidence plaintiff shows that this control or superintendence was exercised by means of signals, given -by the foreman in -charge of the train crew to the engineer and switchmen; that it was the foreman’s duty to give such signals, and the duty of other members of the crew, including plaintiff, to direct the movement of the engine and cars in obedience to such signals. The evidence further shows, without -conflict, that it was- the duty -of the switchman to keep on the lookout for all the signals given by the foreman. The appellee thus recognized and established, by his pleadings- and evidence, the office and import of such signals, and bases charges of negligence upon the manner in which the. duty of signalling was performed. It needs no argument to show the justice of the proposition that if it be the duty of one employe to control t'he action of engine and cars and the actions of other employes in charge thereof, by means of signals, it is also the duty of such other employes, not only to obey such signals as they may be given, but also to keep on a lookout for all signals that may be given ¡by such employe whose duty it is to make them. The duty to give signals im: plies a corresponding duty to see and obey the same, and the performance of said latter duty with due and ordinary care necessarily implies the further duty (if being on the watch for all such signals. . A failure in such latter duty would tend to show contributory negligence upon the part of the plaintiff, such as was charged under the fourth plea in answer to the complaint. We do not mean to say that a failure to see any 'signal.that might he given would necessarily imply negligence— such, for instance, as signals, made where it is' impossible for one to see them, or made at' such a time as when, in the proper performance of the duties of his position, the attention of an employe is necessarily directed elsewhere; but such reasons as these do not 'conflict with the general duty to keep a proper lookout for all signals that may be given by one whose duty it is to give them on the part of another whose duty it is to receive them. Under the evidence charge No. 3 was proper and should have been given, leaving it to the jury to say whether or not the plaintiff had been guilty of contributory negligence in failing to observe or be governed by the signals of foreman Kelly for the stopping of the train, which the engineer and fireman testify was given by said Kelly.

¡Charged requested by the defendant was bad in its failure to predicate like conditions, or similar circumstances, such as existed at the time of the alleged injury. It is a matter of common knowledge that jerking and jarring, with more or less violence, necessarily attend the handling of locomotives and cars under the circumstances and conditions shown in the evidence in this case, and it cannot be, as- a matter of law, questioned that the plaintiff assumed the risks incident to the usual and customary performance of his duty as switchman under bis. said complaint. The. jerking or jarring of the car on which the plaintiff was at the time riding in the performance of his duty is alleged in the complaint as the immediate and direct cause of the injury 'complained of, and that tliis jerking and jarring resulted from the sudden stopping or -checking of said ear. There is no pretense that the defendant was guilty of any wanton or willful misconduct causing plaintiff’s injury. The right of action is based solely upon simple negligence. Charge 5, requested by the defendant, asserts "that, .“although the jury may believe from the evidence that said car was suddenly stopped, and that the speed of said car was suddenly checked, and that said car was otherwise jarred at the time plaintiff was injured, yet they must find for the defendant unless they further believe from the evidence that said sudden stopping of said car, or the sudden jerking of said car, cause an unusual shaking or jarring of said car.” If the jerking and jarring was such as was customary and usual, and not an unusual jerking or jarring, then the incident risk was one that was assumed 'by the plaintiff in his 'said employment. We are of the opinion that the charge was proper, and should have been given as requested.—Birmingham Mineral R. Co. v. Wilmer, 97 Ala. 168; Highland Ave. & Belt R. Co. v. Miller, 120 Ala. 543.

For the error in refusing charges three and five, requested by the defendant, the judgment of the court below must be reversed and the -cause remanded.

Reversed and remanded.