Pryor v. Louisville & Nashville Railroad

90 Ala. 32 | Ala. | 1890

SOMERVILLE, J

The alleged defects in the ways and machinery of the defendant, relied on in the complaint as grounds of culpable negligence, are two: (1) the detective link used in coupling the cars together, which broke and separated the two sections of the train; (2) the existence of a hole upon the track of the railroad, stepping into which by the plaintiff contributed to the accident. It is perfectly manifest from the evidence, that the defect in the link, which resulted in its breaking, was not the proximate, but only the remote cause of the plaintiff’s injury.

The complaint alleges the existence of a hole upon the railroad track, into which the plaintiff stepped, and was injured. The evidence, if we correctly interpret it, shows that the plaintiff was injured by getting his foot caught in between the cross-ties outside of the iron rails, and therefore off the track proper, and fell forward on the track just as the cars came together. The point where the accident occurred was near a depot called Strassburg. As the company was not under the same rule of duty to keep in good repair the road-bed on the outside of the rails, as on the inside, and between the rails, where the danger of collision with moving trains was more imminent, we incline to the opinion that there was a fatal variance between the allegations of the complaint and the proof in the case.

But, conceding that the fact of negligence in these particulars was proved as alleged, so as to obviate the question of variance, the contributory negligence on the part of the plaintiff was of so culpable a character as to be fatal to his right of recovery in the action. “It is contributory negligence of an aggravated character on the part of an employé,” says Mr. Beach, “to disobey reasonable rules and regulations enacted to protect him from injury. If he is injured through such a gross and unwarranted disregard of his own safety, his remedy is gone. Such negligence is the most pronounced contributory negligence possible. It properly leaves the person injured by it wholly remediless.” — Beach on Contributory Negligence, § 141, and cases cited in note 1.

This principle was applied to the case of a brakeman who was injured in coupling cars with his hands in violation of the company’s rules, in Georgia Pacific Railway Co. v. Propst, 83 Ala. 518, where Stone, O. J., said: “If the plaintiff, either from a knowledge of the rules, or from observing the practice of couplers, learned the rule or custom of the road, not to use the hand, but a stick in coupling, and, in disregard of such rule or custom, went on the track, between the cars, and attempted to couple with his hands; this would be contributory negligence, and would deprive him of all right to recover in this action.” The rule thus announced is conclusive of the present case. The regulations of the company strictly prohibited the dangerous practice of coupling with the hands, and also going between the cars while in motion to make a coupling. Brakemen and other employes were required to use a stick in all cases for' guiding the link on such occasions. A violation of this rule subjected the employé to suspension or dismissal from the service of the company. The plaintiff himself testified to the existence of such a rule, showing his. knowledge of it. The rule was manifestly reasonable. His failure to observe it was such want of ordinary care as amounted to culpable negligence on his part, and this act of negligence was the proximate cause of his injury. His fault in this particular directly contributed to such injury. He himself thus became the author of the wrong of which he complains in this action, and this fact effectually bars his right of recovery.

The rulings of the court on the evidence all relate to the question of defendant’s negligence. In the view we have last taken of the case, such negligence is admitted to exist. These rulings, therefore, if error, become error without injury to the-appellant.

The judgment is affirmed.