141 Ala. 258 | Ala. | 1904
This, is a suit by Charles L. Brom-berg, Jr., Admr. etc., against the appellant Railroad Company, to recover damages for the negligent killing of Arthur Robbins, on the 19th day of December, 1900. The- deceased was a brakeman, and as such, was at the time of his injury in the employment of the defendant
The Federal statute above referred to, requires railroads to equip their cars used in interstate commerce with automatic couplers, and for any injury to a person, occurring by reason of their failure to do so they are unquestionably liable. The second section of the act of Congress, provides as follows: “It shall be unlawful for any such common carrier to haul, or permit to -be hauled, or used on its line any car used in moving interstate traffic not equipped with, couplers, coupling automatically, by intact, and which can be coupled without the necessity of a man going in between the ends of the ears.” It would be a narrow' and limited construction of this statute, to say that it was- only applicable in cases where the cars at the. very moment of the. injury are being, actually used in moving interstate traffic, and not to' cans where the injury occurs in the making up of a train of cars for the purpose of moving interstate traffic. The language employed in the statute, as well as the beneficent purpose for which it. was enacted — the preservation of human life, forbids an interpretation so narrow'. In Voelker v. Chicago M. & P. Ry. Co. (c. c.) 116 F. 873, where the same question wras under consideration, it. was said: “This statute requiring railroad companies to equip their cars -with automatic couplers w'as not enacted to protect the freight, transported therein, but for the protection of the life and limb of the employees wdio w'ere expected to handle these: cars. The beneficent purpose of this statute is defeated if the employees are required to- handle cars not equipped as required by the statute, without regard to the question whether thei cars are loaded or not.. * * * * When companies like the defendant in this case are engaged in interstate traffic, it is their duty under the act of Con
The overruling of the defendant’s demurrer to the complaint- and to each count thereof as shown on page thirty-six of the record, constitutes the second assign
The act of Congress in question, being a regulation of interstate commerce, and over which Congress has exclusive jurisdiction, its provisions are binding upon the courts of all the states.- — So. R. R. Co. v. Harrison, 119 Ala. 539; Boyd v. Nebraska, etc., 143 U. S. 135. Section 8 of the act of Congress is as follows: “That an employe of such common carrier who may be injured by the locomotive, car or train in use, contrary to the provisions of this act, shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlaw
On the trial exceptions, were reserved to certain rulings of the court in the admission of evidence. The first of these exceptions- was to the refusal of the court to exclude a, statement by the witness Herron that “a
The defendant objected to the introduction in. evidence by the plaintiff of the act of Congress requiring railroads engaged in interstate commerce to eqiiip their cars with automatic couplers. The courts take judicial knowledge of what this act embraces, and therefore, it was immaterial whether it. was introduced in evidence or not. — 17 Am. & Eng. Ency. of Law, (2d ed.j p. 928. Thei defendant moved to exclude all the evidence offered on behalf of the plaintiff on the grounds, (1) That no prima- facie case liad been made out by the evidence; (2) Because the evidence showed without conflict a case of contributory negligence. This motion was overruled, to which ruling the defendant excepted and now assigns the same as error. There wa,s. evidence tending to support each count of the complaint, leaving out of consideration the 7th count. The first six counts were substantially the same in their averments, and in legal effect, there was no difference, and the 8th count differed only in that it- did not undertake fully to describe the manner in which the injury occurred, as was done in the first six counts, the gravamen of each count being tlie violation of the Federal statute requiring railroads engaged in interstate commerce to equip their locomotives and cars with automatic couplers, and the failure of the defendant company to comply with its provisions. That the cars which were being coupled by the plaintiff’s intestate at the time he was killed were used in interstate commerce, and were not provided with automatic couplers, and that intestate’s death was occasioned by reason of the old-fashioned couplers, which were being used, slipping by one another at the time the cars, were brought, together for the purpose of being coupled, was without dispute; and' was proven by the testimony of tire witness Herron. So, clearly, the first ground of the motion to exclude was wholly without, merit. The second ground is upon the theory as urged in argument by
The court gave several charges requested in writing by the plaintiff. The appellant assigns as error the giving of these several charges jointly in one assignment. Of course, each and every one of these given. charges must be bad, to sustain the assignment, in other words, if any one of them Avas properly given, the assignment-of error will avail nothing. The first of these given charges Avas as follows: “The court charges the jury that there are eight counts in the complaint, each one being in the nature of a separate suit; and if the plaintiff has proven any of his counts he is entitled to re* cover, unless the defendant has established some of the defenses pleaded thereto.’’ This charge correctly states the law, and the giving of it Avas free from error. The next given charge included in the assignment, was as follows: “The court charges the jury that the burden of proving contributory negligence rests upon the defendant.” No fault is to be found in this eliarae.
Remarks of counsel for plaintiff made in argument before the jury, and to which objection was made and exceptions reserved to the court’s ruling on the objection, while not to he commended, were not such as should work a reversal of the cause for the refusal .of the trial court to .arrest the same. The remarks objected to did not infringe the rule laid down by this court in the case of Croas v. State, 68 Ala. 476, 484, .where it is said that, “The statement! must be made as of fact - the fact stated must be unsupported by any evidence, must be pertinent to the issue, or its natural tendency must he to influence the finding of the jury, or thei case is not brought within the influence of this rule.”
We have not followed counsel in a consideration of some propositions discussed in briefs, for the reason that the state of the record, and the disposition of a number of assignments of error by us, rendered it unnecessary to a final conclusion of the case. We And no. reversible error, and the judgment will be affirmed.
Affirmed.