61 Ala. 376 | Ala. | 1878
The doctrine, that one who has contributed proximately to the injury, can not recover damages therefor,.
The plaintiff’s intestate was crushed and killed by a freight train of the defendant. The witnesses are not agreed on the question, whether the whistle was sounded, or the bell rung, before the defendant’s train was moved. The charge of the court submitted that question to the jury, and, to find the verdict they did, if they regarded the charge of the court, it was necessary for them to find that neither of these signals was given. We must then deal with the ease as if neither was given. Failing to sound the whistle, or ring the bell, was a breach of duty enjoined by statute, and fixes the charge of negligence on the railroad corporation; and any one injured thereby may recover damages for the injury, unless by his own negligence or fault he has disabled himself from making complaint. The undisputed facts are, that plaintiff’s intestate attempted to cross defendant’s railroad track, by passing under the coupling of two box-cars, which were coupled together, and constituted part of a train, then standing temporarily on the side-track; placed there, with locomotive and steam up, to allow a passenger train to pass it.. While in the act of passing under the coupling, the train.
That portion of the general charge which was excepted to-is not in harmony with these views, and should not have been given. The fourth and tenth written charges asked should have been given.
Beversed and remanded.