Louisville & Nashville Railroad v. Stutts

| Ala. | Nov 15, 1894

HARALSON, J.

1. It may be fairly inferred from the evidence, that plaintiff’s intestate, Lloyd, was an experienced railroad engineer. He had been running an engine to a freight train for the defendant for two years ; and, for two weeks before his death, had been in charge of the engine and engaged in switching cars on the spur track, where the accident occurred. There is every reason to believe he was well acquainted with the engine he handled, and with the trestle at the end of the track. The trestle was a short and high one, terminating on the brow of a hill, its height, at the end, being some 20 or 30 feet from the ground. The plaintiff’s witness, Thomas Hostlre, a carpenter by' trade, who had built trestles and bridges, says he walked over and examined the trestle; and from its end to the switch, it was 120 feet, and was strong and well built. There is no evidence to the contrary. As to the engine, it was shown to have been in good order'. It had been overhauled and repaired only a short while before, and if there was a defect about it, so as to make it unsafe for use, it was not shown. Parties who were acquainted with the engine before the accident, and up to the time it occurred, and who examined it afterwards, put this beyond dispute. The only attempt made to show anything to the contrary was by the witness Hilburn, who said he heard Lloyd say, that something, he did not say what, was the matter with the quadrant, and that he used to tell the witness to look out, the lever would hang sometimes, and that he heard him say to Cook, he wished him to fix the engine. What he desired him to fix, he did not specify, but he was looking and pointing under the engine, when talking. Witness did not know whether Oook fixed it or not — nor did he say at what time the conversation occurred. It was shown to be the duty of the engineer, to look over his engine in going from and coming into the yard, and if it needed anything, to report it to the foreman, whose duty it was to repair defects and keep it in order. There was no attempt to show that there was any defect with anything under the engine at the time of the accident. If there was any defect with the quadrant, as is alleged, Lloyd did not specify it, nor was any effort made to show that he reported any repairs to the foreman,needing to be made. The presumption is, that the foreman, in the absence of proof to the contrary, did his duty in making repairs when it is shown by experts that, to the day of the accident, the engine was in good order, and we find Lloyd running it without complaint, and without apparent difficulty, to the moment of the accident. So, it may be said, that the proof is without conflict that the trestle and the engine were in good condition when the accident occurred, and the defendant was not negligent on the score of a failure to discover defects and repair them.

2. The only danger connected with the use of the trestle and engine was such as was open and obvious to any one of fair intelligence. The trestle was dangerous for no alleged reason, except that it was high and short. All high trestles, whether short or long, are obviously dangerous, when not passed with care. Railroads would be much safer without them, and their existence and danger are accepted by employer and employé alike, as necessary and unavoidable. 'Those witnesses who testified that the structure was dangerous, based their opinions upon its height and length, which, if properly called defects, were apparent to one person as well as to another. But, all the proof shows, without anything to the contrary, that the space between the switch and the end of the trestle — a hundred and twenty feet and four inches by measurement — though short, was sufficient within which fo handle an engine, if done with care. Of an engine in good condition, it may be said, that there is at all times danger connected with its use, especially if not weR and carefully handled, and no one knows this and understands it better than the engineer who controls it, and can provide against danger so well as he. And it is well settled, in respect to these natural and patent dangers in the ways, works and machinery of a railroad company, as contradistinguished from dangers arising from latent defects — which might, by the exercise of reasonable care on the part of the company or of its officers, he discovered and remedied — that the employó accepts them as necessarily incident to his employment. A company is not bound to its employés to take precautions against all possible dangers, especially when voluntarily assumed by them at their own convenience and risk. In no case is the company an insurer of the absolute safety of its ways and machinery. Its duty is performed by guarding against such as are reasonably probable.—Richmond & Danville R. R. Co. v. Bivins, 103 Ala. 142" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/richmond--danville-railroad-v-bivins-6515677?utm_source=webapp" opinion_id="6515677">103 Ala. 142; Schlaff v. L. & N. R. R. Co., 100 Ala. 377" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/schlaff-v-louisville--nashville-r-r-6515377?utm_source=webapp" opinion_id="6515377">100 Ala. 377; Holland v. Tenn. C., I.& R. R. Co., 91 Ala. 450; L. & N. R. R. Co. v. Boland, 96 Ala. 632. In this case, every alleged defect in the engine and trestle, brought to view by the evidence, was open and obvious to the engineer as well as to his employer.

3. Another principle of controlling importance, which after very grave consideration may be regarded as finally settled in this court, is, that if an employó knows of defects such as are here complained of, and continues in the employment of the company, after the lapse of a reasonable time for them to be remedied or removed, he assumes this additional risk — even if not incident to his original employment. We had better quote the rule as established : “If the employó while engaged in the service acquires knowledge of any defects in the materials, machinery or instrumentalities used, and notice thereby of an increased risk of danger, and afterwards continues in the service, without objection or notice to the employer, he assumes the increased risk himself; but he may notify the employer of the defect, and continue in the service for a reasonable time, relying on the promise of the employer to remedy the defect, yet, if the defect is not remedied, within the promised time, his further continuance in the service is at his own risk, and he is guilty of contributory negligence.—Birmingham R. & Electric Co. v. Allen, 99 Ala. 359" court="Ala." date_filed="1892-11-15" href="https://app.midpage.ai/document/birmingham-railway--electric-co-v-allen-6515229?utm_source=webapp" opinion_id="6515229">99 Ala. 359; Geo. Pac. Railway Co. v. Davis, 94 Ala. 309; L. & N. R. R. Co. v. Hall, 87 Ala. 708 ; Eureka Co. v. Bass, 81 Ala. 201.

Here, as we have seen, if there were any latent defects about the engine and trestle, which the defendant failed to discover and remedy, it is not shown. If the engineer discovered any and reported them, which were not remedied, that fact is not shown. The only defects brought to light and complained of, were patent, and understood by the engineer as well as by the company, and he continued in its service, notwithstanding. This, without more, is sufficient to foreclose his complaint.

4. It is said, however, that the stop block at the end of the trestle, was insufficient and dangerous. If it was, it belonged to the class of open, obvious defects, of which the engineer was well aware, while in the employment of defendant, and at the time of his service, and to which he raised no objection, and we might dismiss this complaint with what has already been said. But, let it be added, that the proof as to the block and its insufficiency and danger has reference to it specially as an appliance for stopping a moving engine. It was shown, that stops at the end of a track, were generally intended for cars, and not for moving engines. For the one purpose they were generally sufficient, and for the other insufficient. The evidence, without conflict in its tendencies, shows that no stop-block that could have been devised and placed at the end of this trestle, could have withstood the weight and force of this engine, propelled at the speed it was moving on the occasion of the apcident. Plaintiff’s own witness, Thomas Hostlre, who was corroborated by other witnesses, testified, that he never saw a stop-block that would stop an engine with a head of steam, without wrecking it; and, from the evidences on the timbers at the end of the trestle, and the condition of rhe bolts, he would say, that the engine struck the block with great force, and that no sort of stop-block would have halted it. If sufficient resistance had been offered by it, the engine would have run off the track, or torn down the trestle. If this evidence be true, and there is nothing to contradict it, it was no defect about the stop-block that caused the trouble, but rather, the weight of the engine and the resistless force with which it was thrown against it by the engineer. The causal connection between the block and the injury was lacking.—Western Railway of Ala. v. Mutch, 97 Ala. 194" court="Ala." date_filed="1892-07-01" href="https://app.midpage.ai/document/western-railway-of-alabama-v-mutch-6514920?utm_source=webapp" opinion_id="6514920">97 Ala. 194.

5. And further still, without stopping to review the evidence, of which there is much, it may be said, it shows without conflict, that the conduct of the engineer in controlling his engine on the occasion of the accident, contributed proximately to his death. All agree that the switch was what is known and called a “close place,” which requires the close attention and caution of an engineer; and yet, we see nothing to warrant the belief, that the trestle, in the good condition it was shown to have been, and with such an engine as the engineer was handling, might not, in the exercise of prudence on the part of the engineer, have been used for an indefinite time, without liability to accident, from any known or apparent danger. It was shown, that the engineer ran upon the trestle with too great speed to comport with safety. It appears that his course in this regard had been observed, and Iiatheway, the engine hostler of defendant’s yard at the time, assumed, as he expressed it, "to get after Lloyd about going on the switch so fast,” when he replied : "You see that hickory limb at the end of the trestle? If she goes over, I will catch on that and the witness added : ‘1 He went on the switch and on the trestle faster than I liked. I would often get off. I told him I was afraid of him.” Pie sat on his seat also, with his left foot under him and his right extended over his box. All the witnesses, who were competent and who testified on the subject, say he ought, in the exercise of prudence, and in order to have his engine under control, to have stood up, and used both handg, one on the reverse, and the other on the throttle lever. It was shown, the book of rules of the company required the engineer in close places to stand, in order to handle his engine the better, and this he should not have neglected.—Warden v. L. & N. R. R. Co., 94 Ala. 279. He had both hands on the throttle lever. The cylinder cocks were closed, as the proof tends to show, and they should have been open. The experts say, again, that going at a slow rate of speed, and observing the foregoing precautions, he might have stopped the engine within a very short distance, and some of them say, within a foot or two, and reversed and returned without risk of peril. But, failing in these precautions, so important to be exercised at such a time and place, he lost control of his engine, probably because confused, and went forward with great and ruinous force against the stop and over the precipice. Our conclusion is, after a careful review of the evidence, that it shows without any conflict, that deceased was careless, almost to recklessness, and thereby brought the disaster on himself, in w'hieh he lost his life.

8. There is no proof to show any willful, wanton and intentional negligence on the part of defendant, as averred in the complaint.

Whether considered as a common law action, or one under the employés act, the plaintiff has failed to make out a case. The proofs justified the general charge for the defendant, and it should have been given. The judgment below will be reversed and the cause remanded.

Reversed and remanded.