Louisville & Nashville Railroad v. Perry , 87 Ala. 392 ( 1888 )

SOMERVILLE, J.

The plaintiff, who was a brakeman, was seriously injured while engaged in the act of coupling cars on the defendant’s road, near a switch on a wayside station. The accident was produced by a rear section of loaded cars being allowed to run down grade and strike the next section, which plaintiff was attempting to couple to the engine. The defense is contributory negligence, the evidence showing that the plaintiff was standing on the railroad track at the time he was hurt, attempting to couple the cars with his hands, without the use of a coupling stick, which was in violation of the company’s rules.

The evidence was conflicting as to the rate of speed at which the rear section of cars was moving at the time of the collision, and whether this speed was faster than usual or not; whether the section came to a complete stop, or moved continuously down grade; whether the conductor gave a signal to come fast or slow; and on other points bearing on the question of negligence. And the inference, moreover, was uncertain whether the plaintiff, who had been in the service of the company only six or eight weeks, had any knowledge of the rule in question, or was negligent in not knowing it.

The degree of negligence on the defendant’s part, in some of these aspects, thus affects the inquiry as to the plaintiff’s alleged contributory negligence, which is the main defense to the action.

It is insisted, however, that upon the uncontroverted facts of the case, the general affirmative charge should have been given for the defendant.

We have attentively examined this evidence, with an earnest desire to do exact justice to the parties. It would accomplish no good to discuss it in detail, each member of the court having thoroughly considered it in all its bearings.

Our conclusion is, that under the principles so frequently declared by us, the evidence is not sufficiently free from conflict, nor the inference of negligence so clear and certain, as to make the question of its existence a question of law. It was, we think, under the circumstances, properly left for the determination of the jury, as one of fact.—City Council of Montgomery v. Wright, 72 Ala. 411; Mayor &c. Birmingham v. McCrary, 84 Ala. 470; Eureka Co. v. Bass, 81 Ala. 200; s. c., 60 Amer. Rep. 152; Ala. Gr. So. R. R. Co. v. Arnold, 84 Ala. 160.

The court properly refused to give the general affirmative charge to find for the defendant.

The other three charges requested by the defendant withdrew from the consideration of the jury all inquiry as to the plaintiff’s knowledge or notice of the existence of the rule forbidding the coupling of cars without the use of a stick. In the absence of this element of fact, the question of negligence veil non was properly left to the jury.—Ga. Pac. Ry. Co. v. Propst, 83 Ala. 518, 521.

The judgment must be affirmed.