135 Ala. 639 | Ala. | 1902
This action is brought under the Employer’s Liability Act ('Code, § 1749), to recoA'-er for injuries receded by plaintiff, who Avas a- brakeman on defendant’s train, by the derailment of a coal car Avhich, with other coal cars, was being pushed by ah engine to-Aiards a coal tipple, and along an unfinished track leading from the main line to the tipple. At the time of the accident. plaintiff Avas assigned to the duty of giving signals from the front of the train to the engineer, and in performing that service he sat on the front of the end car Avith his legs outside the car’s bed. While in that position the end or “grease box” of the car axle caught on the upAvard- projecting end of an unused cross-tie Avhich lay outside the rails Avith its other end imbedded in earth or refuse from a mine, and the car Avas thereby throAvn from the track and against another car Avhich Avas standing on an adjacent track, and plaintiff’s leg was crushed in the collision.
The defendant pleaded the general issue and specially that- plaintiff Avas guilty of negligence which contributed to his injury in that “he Avas riding on the car in front, for the purpose of Avatching for obstructions on the track, and Aidiile so riding negligently rode with his leg over the side, of the car and on the outside, and failed to notify anyone on the train that the obstruction mentioned in said complaint was on or in dangerous proximity to the track ¿as it was his duty to do in the premises.”
As furnishing data for the assessment of damages it was proper for the plaintiff to prove his former capacity to work and earn.—Seaboard Mfg. Co. v. Woodson, 98 Ala. 378. For that purpose evidence of what he earned Avhile in the service of the Birmingham Southern Bail-road 'Company was admissible. No good reason exists for limiting such proof to earnings in the immediate employment wherein the injury is received.
One species of negligence made actionable by the act referred, to is that of any person in the service of the employer who has charge or control “of any part of the track of a railway.” To bring a case within this provision it is not essential that the track occasioning the injury should he finished or in charge of the regular section foreman. It it has reached such stage of construction as to become “the track of a railway” and has been adopted for use, though irregularly, negligence of the. employe in charge of it, regardless of whether he be what is known as a section foreman, ór a construction foreman, is chargeable to the employer. Here there is evidence tending to show the track in question, though unfinished, had been used for hauling coal every tAvo or three days for fifteen or twenty days. That during that time Honeycutt, the construction foreman, had charge of the track for - the purpose of building it and keeping it in order while it Avas being operated, though at times Avhen he was absent, it was in charge of his assistant; that Honeycutt Avorked at the track on the day of the accident, and that morning told the conductor of plaintiff’s train that the track in question was all right and that he could use it to place cars at the tipple. This evidence was not all free from contradi (- tion, but it placed exclusively Avithin the proAdnce of the jury the question of whether Honeycutt was in charge of the track and was negligent in such Avay as to bind the company in this action, by his failure to diseoA'er, or to remedy after discoArery, the danger attending the position of the cross-tie, and this Avh ether
A good ground for refusing charge 8 which is applicable also to charge 4 is that it implies and might have misled the jury to believe it 'was their duty to render a verdict with special reference to the particular count mentioned, and such a verdict the law did not require. It is not equivalent to an instruction merely negativing a right to recover on that count.—Mobile & Ohio R. R. R. Co. v. George, 94 Ala. 199; L. & N. R. R. Co. v. Sandlin, 125 Ala. 585; Dorsey v. The State, 134 Ala. 553.
In plea 2 plaintiff’s act of riding with his leg outside the car is not averred to have been of itself negligence contributing proximately to his injury, but it is that act combined with, and coalescing with, a negligent failure on his -part to give notice of the obstruction which i-s set up as constituting contributory negligence. The negligent failure to give such notice was by the averments made material to be proved and without a finding of that fact the defense presented, by the plea" could not have been established. See King v. People’s Bank, 127 Ala. 266; Bienville Water Supply Co. v. City of Mobile, 125 Ala. 178; Birmingham, etc., Co. v. Baylor, 101 Ala. 488; Highland, etc., R. Co. v. Dusenberry, 94 Ala. 413; Armstrong v. Montgomery St. R’y Co., 123 Ala. 123; Louisville & Nashville R. Co. v. Mothershed, 97 Ala. 261. Refused charges 11, 12, 13, 23, 30 and 31—the last because of the alternate character of its averments — ignored the necessity of such finding by the jury.
Another objection to charges 11,12, and 13, and which applies to charges 15, 17 and 18, is that they each improperly assumed that on the facts hypothesized therein,
Charge 22 contains several propositions, some of which are abstract, there being, no evidence to which they are referable. That charge ás a whole is improperly argumentative.
Unless the danger of derailment by the projecting tie was obvious to, or was understood by, the plaintiff, he could not have been held to have assumed the risk of such derailment as was assumed by refused charge 12. Osborne v. Alabama Steel & Wire Co., ante, p. 571.
Given charge 23 invaded the jury’s province and should have been refused. The court had not the right to qualify it but the qualification placed on it by the court in its oral charge was not otherwise improper, and since the qualification amounted only to a correction of a bad written charge, it is not ground for reversal.—Planters, etc., Co. v. Thurston, 103 Ala. 255.
No reversible error appearing, the judgment will be affirmed.