61 So. 73 | Ala. | 1913
— The plaintiff, a locomotive engineer in the service of the Southern Railway Company, while operating his engine at night over a section of the defendant’s main line, used by his employer under an agreement with defendant, discovered, about 40 yards ahead of him, another engine with headlight burning, supposing it to be on the main line, and a collision with it imminent, was seized with fright, leaped from his engine, and was injured. It is alleged that plaintiff’s inference and his fright, and his effort to escape from the supposed peril, were, under the circumstances, reasonable and proper; and that his injury was
We are referred by counsel to no precedent for a recovery in such a case as this, and our own researches lead us to conclude that the-case is one of first impression in the courts. If plaintiff is entitled to recover, it can only be because defendant has violated some duty owed to him in the premises.
We are referred by plaintiff’s counsel to the doctrine which justifies one who is assaulted by the willful act of another to act reasonably upon appearances, and to do in defense what a reasonable man would do under like circumstances; and, again, to the right of recovery for a civil assault, when one is put in fear by an apparent demonstration of force, although there was no im tent to harm, and no danger of harm in fact. Reference is made, also, to the doctrine that one who is, by the wrongful or negligent conduct of another, in violation of a duty owed him, brought into sudden peril, and who in the effort to escape it, acts wildly and runs into danger and is injured, although cool circumspection would have enabled him to choose a safe escape, is nevertheless not barred of his recovery by reason of contributory negligence, if his conduct Avas that of an ordinarily prudent man under such circumstances. — L. & N. R. R. Co. v. Thornton, 117 Ala. 274, 23 South. 778; Postal Telegraph Co. v. Hulsey, 132 Ala. 447, 31 South. 527; Pierson Lumber Co. v. Hart, 144 Ala. 239, 39 South. 566. In the first two instances, however, there is a willful breach of an unquestionable duty not to put any one in fear by any demonstration reasonably calculated to do so; and in the last there is actual peril to the plain
The case of B. R. & E. Co. v. Butler, 135 Ala. 388, 33 South. 33, is more nearty in point. There a passenger sued the carrier company, and the complaint alleged in the alternative that the defendant’s servant caused another of its cars “to appear to be in imminent danger of collision” with the car. on which plaintiff was riding, whereby he was caused to j-ump, to his injury. On demurrer, it was held that, to state a cause of action, it should appear that the appearance of imminent danger was such as to convince a reasonable person of the imminence of such danger; and that plaintiff jumped from the car to save himself, as any reasonable person might have done under such circumstances. We are not disposed to question the view that such a count states a good cause of action in favor of a passenger] .against his carrier. We assume, however, that even in that case there must be actual negligence in the management of the carrier’s cars, and actual danger to the passenger in the situation produced, though it may not be actually imminent; or else there must be a willful attempt by the carrier’s servant to frighten the passenger —itself, of course, a breach of the specific duty owed him. But, however that may be, that case is clearly not applicable here.
The construction and use of side tracks and spurs at convenient places is but an ordinary incident to the use and operation of railroads. They are not, in themselves, dangerous, and add nothing to the perils of service on the main line, except as they may be negligently left open at improper times. And so their use for the purpose here complained of is both customary and proper, and did not endanger the safety of any train or any person passing over the main line. It does not
It may be conceded that plaintiff’s leap to escape from the flaming face of a mogul engine, thus unexpectedly seen in the night, might be no more nor less than what a reasonable man might have done, had he supposed it to be standing on the main line. Nevertheless, we think his case must fail, because the defendant was not guilty of any breach of duty to him, and because he must be held to have assumed the responsibility of determining for himself what he would do for his own safety, when he misjudged ordinary and usual conditions, which were not at all dangerous in fact.
Reduced to its last analysis, the complaint would impose upon defendant the duty of informing plaintiff, not of danger, but of the absence of danger — a rule of conduct not prescribed by any authority known to us, and which, we think, cannot be supported by either reason or the requirements of sound policy.
Affirmed.
