93 Ala. 1 | Ala. | 1890
— The plaintiff, appellee in this case, was the servant — brakeman—in the employment of the appellant corporation. He was at his post of duty, and on one of the trains of the railroad company, when the train on which he was serving was derailed, and one of his legs was thereby so much injured and mangled, as that he was forced to submit to amputation of the limb. The engine drawing the train — -a freight train with loaded cars — was without a pilot, or cowcatcher, and the immediate cause of the derailment was, that the train ran over a cow, and was thrown from the track. No other defect in the machinery, and none in the track, was shown. The contention of plaintiff was, and is, that the running of the train without a cow-catcher attached to the engine was negligence in the railroad company, which caused the injury, and entitles him t.o recover under the statute. — Code of 1886, § 2590.
So much of that statute as pertains to this case reads as follows : “When a personal injury is received by a servant or employé in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employé, as if he were a stranger and not engaged in such service or employment, in the cases following: 1. When the injury is caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with,
It was testified on the trial that those in control of the train knew the engine was being run without a cow-catcher, and it would overtax credulity to suppose that either the conductor or engineer operating the train was ignorant of that fact. It was shown that switch-engines, on all well regulated railroads, are operated without pilots or cow-catchers, and satisfactory reasons are given why they are so run. The operations of switch-engines are confined to stock-yards, and to the switching area of the track. As a rule, they are much more easily brought under the control of the engineer than road-engines are, first, because they move at a much lower rate of speed, and, secondly, because they usually draw fewer and less burdened cars, and, hence, their momentum is much more easily overcome. This, however, can furnish no excuse or palliation in this case. At the time the plaintiff was injured, the engine was not engaged in switching, nor was it within the area allotted to such operations. It was drawing a freight train of loaded cars, and could not be easily or speedily brought to a stand-still. All the testimony agrees that the cow-catcher is useful in throwing obstructions from the track — that they are in general use alike on passenger and freight trains, and that, when used, derailments by obstructions on the track are less likely to occur. And there is no testimony that they are a new invention, or one the ' utility of which is in dispute or doubt in the minds of railroad men. It is common knowledge that they have long been in general, if not universal use on railroads.
The City Court did not err in refusing to let the witness Elmore testify about another case. Nor was there error in refusing to give the general chara-e. — L. & N. R. R. Co. v. Hall, 91 Ala. 112.
Affirmed.
