276 F. 1 | 5th Cir. | 1921
This was an action by the defendant in error (herein referred to as the plaintiff) against the plaintiff in error, Woodward Iron Company (herein referred to as the defendant), to recover damages for personal injuries alleged to have been sustained by the former while engaged in the discharge of his duty as an employee of the latter. Each count of the complaint which was put in issue and submitted to the jury alleged negligence for the consequences of which to its employee the defendant was responsible under the Alabama Employers’ Riability Act. Code of Ala. of 1907, § 3910.
The pldintiff while pushing a loaded tramcar in a coal mine of the defendant stumbled and, after,- in trying to regain his balance, holding on to the car while it moved a distance which there was evidence tending to prove was 8 or 10 feet, fell, and in doing so placed his hand on the rail of the track and it was run over by a wheel of the car and injured.
“It is insisted, however, on the part of the defendant, that the court erred in not holding that the absence of brakes on the engine was not the proximate cause of the injury; that the presence of the horse on the trestle was (he proximate cause of derailing the tender and engine; and that the company was not guilty of any negligence by reason of which the horse came upon the trestle.
“We think this claim is unfounded, and that the proximate cause of the injury within the meaning of the law was the absence of the brakes on the engine. At any rate, there was evidence which made it a question for the jury to say whether the accident would have happened if there had been brakes on the engine in good order and fit for use.
“It may be assumed that there was no negligence on the part of the defendant by reason of which the horse came upon the trestle, and that it was not, therefore, responsible for any damage of which the horse was the sole and proximate cause. We think one proximate cause of the, accident was the absence of the engine brakes. The purpose of a braise is to stop the engine more promptly tha.n can be done without it, and if there had been a brake on the engine it would, if used, have probably prevented the accident. At any rate, there was evidence to that effect. The absence of a brake which, IE present, would have prevented the accident was, therefore, a próxima le cause thereof. If an obstacle on the track which necessitates the using of the brake is to be regarded as the sole proximate cause of an accident which occurs only*4 because there was no bralte on the engine, the result would be that the company would never be liable, no matter what its negligence in not providing effective brakes, so long as its own negligence did not cause the presence of the obstacle on the track. This cannot be true.
“The obstacle is one of the things which caused the necessity to use the brake, and it is the neglect of the company in not furnishing the brake which constitutes an immediate and proximate cause of the injury.”
When the plaintiff was hurt, the tramcar was being pushed up a slight incline. It is suggested that the stopping devices on the car were intended for use when it was going downgrade, and that it was not contemplated that they would be resorted to when the car was being pushed upgrade. There is no merit in this suggestion. The purpose of the device in question was to stop the car whenever there was occasion or necessity to do so. The evidence as to the defective condition of the brake shoe was properly submitted to the jury.
The refusal of the court to give the following requested charge is complained of:
“There is no duty on the company to place such brake shoes on the cars as would bring them to a stop' quickly enough to stop the car and prevent' the injury of a person who might suddenly be on the track in front of the moving car.”
We conclude that there was no reversible error in any ruling complained of.
The judgment is affirmed.