Louisville & Nashville Railroad v. Watson

90 Ala. 68 | Ala. | 1890

McOLELLAN, J.

The appellee, plaintiff below, was a brakeman in the employ of the appellant, defendant below. The action is for personal injuries sustained by the plaintiff Avhile he Avas endeavoring, in the line of his employment and duty, to couple a freight car to the tender of a locomotive belonging to the defendant and operated by its employés. The evidence is without conflict to the point, that had the plaintiff used a coupling stick, the injury would not have been suffered. It is also uncontroverted, that a rule of the defendant company required the use of these sticks in all cases, and forbade brakemen to couple cars without using them. The evidence is in conflict as to whether plaintiff had knowledge of this role; and this question was properly submitted to the jury. Notice •of the existence of the rule, and a failure to comply with it, in respect to the coupling in mailing which the injury was received, constitutes negligence on the part of the plaintiff, so contributing to the injury sustained as to afford a complete defense to this action, if its gravamen be mere negligence on the part of defendant’s servants.—Ga. Pac. Railway Co. v. Propst, 83 Ala. 518.

But contributory negligence is not a defense where the defendant’s servants knew of the plaintiff’s peril, and could have avoided the injury, notwithstanding the negligence of the plaintiff, by the use of ordinary care, or where the injury is inflicted with such gross negligence on the part of defendant’s employés as to be the legal equivalent of recklessness, wantonness, or intentional wrong. —Tannery. L. & N. R. R. Co., 60 Ala. 621; Cook v. Central R. R. Co., 67 Ala. 533 ; Ga. Pa. R. R. Co. v. O'Shields, ante, p. 29.

The case at bar, in our opinion, involves both these principies. The tendencies of the evidence as to controverted facts, taken in connection with facts which _ are undisputed', authorized the jury to reach the following conclusions: The cars to be coupled were within twelve inches of each other. Defendant’s engineer knew that plaintiff was between them for the purpose of making the coupling, that he had no coupling stick, and, consequently that he must make the coupling by hand. He must have known, also, that the safety of this operation depended upon the tender being moved back so slowly as to give time lor the withdrawal of plaintiff’s hand, after the link attached to it had been guided into the draw-head of the other car-, and before the draw-heads came together.’ It was entirely practicable for the engineer to have so moved the locomotive and tender as to have conserved plaintiff’s safety, despite the negligence of the latter, by gently pulling the lever of the engine; but, instead of doing this, he moved the lever suddenly and entirely over, and thereby caused the locomotive and tender to “jump back a foot”, so instantaneously as to give the plaintiff no time to withdraw his hand from between the draw-heads, and avert the disaster. We have no hesitancy in holding that these facts, if found to exist by the jury — and there was evidence either proving or legitimately tending to prove each one of them — brought the case within the exception to the rale, that a plaintiff can not recover if his own negligence proximately contributed to the injury. Manifestly it was the part of ordinary care, under all the circumstances, for the engine to have been moved back as slowly as practicable; manifestly, also, in view of his knowledge of plaintiff’s peril, and of the practicability of averting it, the act of the engineer in causing the engine to “jump back” against the other car with a suddenness which he must have known would afford plaintiff no opportunity to extricate himself, “was so wanton and gross as to imply a willingness to inflict the injury”, which may always be imputed' to the defendant if he, knowing plaintiff’s negligence, might notwithstanding have avoided injuring him. —I. C. R. R. Co. v. McClure, 26 Ind. 373.

All of the charges requested by the defendant, except those hereinafter considered, either authorized or required the jury to find for defendant, because of plaintiff’s contributory negligence, notwithstanding they should also believe that the injury was recklessly, wantonly or willfully inflicted, or could have been avoided by the observance of due care on the part of the engineer after he became aware of plaintiff’s peril. All of these charges were properly refused, under the doctrines considered above.

Charge 4, requested by defendant, is bad. It can never be affirmed, as a matter of law, that it is the duty of the jury to give more weight to the evidence of one witness than they accord to another, on the ground of interest in the one, and a lack of it in the other. On the contrary, it is always competent for the jury to believe or disbelieve a witness, wholly irrespective of any interest he may or may not have in the litigation. Moreover, both this and charge 9 were properly refused, because they were abstract. There is no evidence in this record on the question of the witness Smith’s interest in the suit.

Charge 1, which asserts that the jury were not authorized to find that the defendant’s engineer was guilty of either reckless, wanton or intentional negligence, proceeds on the assumption, that there was no evidence tending to show that the engineer acted willfully or recklessly. The assumption is, as we have seen, erroneous, and .the charge was properly refused.

Charges 14 and 15, which assert that an action commenced on April 13,1889, for damages resulting from a personal injury received on April 13, 1888, is barred by the statute of limitations of one year, are patently bad, in view of the statutory rule as to the computation of time. — Code, §11.

We do not think that the court erred in over-ruling defendant’s motion to exclude from the; jury plaintiff’s statement, made as a witness, that the engineer “backed the tender against the car with more force than was necessary.” This, was but an inference necessarily involving the facts that the tender was to be moved, or that the space between the cars, was only a few inches, and that the momentum imparted to. the locomotive and tender carried them beyond that distance; and the form of the statement is only á short-hand rendering of these facts.—S. & N. R. R. Co. v. McLendon, 63 Ala. 266; Carney v. State, 79 Ala. 14; 1 Wheat. Ev. §510.

We have examined all the rulings of the City Court upon which errors are assigned, and discussed in the foregoing opinion such of them as are insisted upon in argument. We find no error in the record, and the judgment is affirmed.