121 Ala. 158 | Ala. | 1898
We construe rule “L,” introduced in evidence by. the defendant, to prohibit getting between cars either of which is in motion to couple or uncouple them. The deceased got between cars one of which was in motion to couple them, and was killed in consequence of being there. This rule was pertinent therefore, and in view of it we concur with the trial court in holding that he was guilty of contributory negligence barring plaintiff’s recovery in this action. Whether' he was between the cars for the purpose of setting the -coupling pin or of guiding the link is immaterial. ■. If it was necessary for him to go in there, to set the pin, he should have done this before the cars came dangerously near to each other, and having entire control of the moving car by-means of a brake he might had he been duly careful have, regulated its approach so as to have afforded time for him to have set the pin and to have withdrawn his body before the cars came together. Not to so control it, and to go in to set the pin when, in consequence of his own want of care in not properly regulating its approach, he could not withdraw before the collision was, in view of the rule at least, proximate contributory negligence on his part. On the other hand, having a coupling stick and being under a duty to use it, there could have been no necessity for him to go between the cars in the manner the uncontroverted evidence shows he did for the purpose of guiding the link; and if he went in there for that purpose he was. likewise guilty of proximate contributory negligence in exposing his person in violation of the rule and without necessity to the peril which killed him.
If the court erred in any of its rulings on testimony it was error without injury. With all the evidence admitted against plaintiff’s objection — except rule “L,” which we have held to have been properly admitted — out of the case, and the evidence offered by plaintiff which was excluded on defendant’s objection before the jury, the court should still have given the affirmative charge for the defendant.
Affirmed. ;