Georgia Pacific Railway Co. v. Propst , 83 Ala. 518 ( 1887 )

STONE, C. J.

— It is contended that, under the act approved January 23, 1885 — Sess. Acts, 99; Code of 1886, §§ 2587-8-9 — the present action by a minor, for an injury done to himself, can not be maintained. In Pratt Coal & Iron Co. v. Brawley, at the present term, we decided this question against the views of the appellant. We held that the minor, or, in case of his death, his personal representative, can maintain the action; or, that the father, or, in certain events, the mother may sue; but we held that a suit by one was a bar to a suit by the other. See, also, “Act to define the liabilities of employers,” &c. — approved February 12, 1885. Sess. Acts, 115; Code of 1886, § 2590.

The Circuit Court did not err in allowing the amendment of the name of the corporation, substituting Railway for Railroad. It was not an entire change of a sole party, but only a change of a part of the name. — N. Y. & Ala. Contr. v. Meyer, 51 Ala. 325; An. Ala. Conf. M. E. Ch v. Price, 42 Ala. 47; So. Life. Ins. Co. v. Roberts, 60 Ala. 431; M. & M. Railway Co. v. Yeates, 67 Ala. 164.

The proof tends to show that the plaintiff, Propst, had served the defendant railway company in the capacity of brakeman for two or more months, but, at the time of the accident and injury complained of, he was not in that employment. He was then hired, at monthly wages, to serve as watchman at Patton Mines, one of the stations on the railroad. He had been employed to do this service by the superintendent, and his duties as watchman were local, confined to the place or station, Patton Mines. There was conflict in the testimony, whether or not the superintendent had instructed Propst to obey the orders that might be given him by the conductor and engineer of the train after-mentioned.

A train of defendant, with Waring as conductor, was passing down the road, with loaded 'freight cars. One of the three brakemen on the train was sick, and the conductor, feeling that he had not sufficient available force of brakemen to manage his train, either requested or commanded the plaintiif to go with him, and supply the place of the sick brakeman. The plaintiif went with him as brakeman, but it was not shown how many miles he had travelled in that capacity. Enough is shown to convince us that he had gone thirty or forty miles, or more, before he reached the station at which he was injured.

The conductor testified, that he had no authority from the superintendent, or from the defendant, to engage or utilize the services of the plaintiff in the capacity of brakeman. Express authority for this purpose was not necessary. The circumstances themselves, about which there is no conflict of testimony, gave him the authority. In such an emergency, there must be discretion and authority somewhere, to supply the place of disabled or missing servants; and no one could exercise this power so well or so prudently, as the conductor in charge of the train. We will, therefore, treat the plaintiff as the lawfully employed servant of the company.

Railroad companies are responsible for the conduct of them agents and officials, done in the natural or necessary discharge of duties, incident to the service they are employed in. — S. & N. R. R. Co. v. Huffman, 76 Ala. 492; Ala. Gr. So. R. R. Co. v. Heddleston, 82 Ala. 218. The first three counts of the complaint, as amendfed, are, each of them, good and sufficient.

The fourth count of the complaint presents a different question. As we understand its phraseology, it does hot charge that the conductor either commanded or requested the plaintiff to go as brakeman on his train. The import of its language is, that he was on the train of his own accord, and it is not averred that he was performing any services as brakeman. .Its language is: “When on a trip down defendant’s said road into Eayette county, on the 27th day of January, 1886, as aforesaid, plaintiff being aboard defendant’s train at Berry Station, Eayette county, Alabama, was then and there ordered by the conductor, or foreman of said railway company, employed to manage or superintend the business affairs of said company on the aforesaid train, and whilst in the exercise of his superintendence, to couple a freight car to others attached,” &c. There is nothing in this count which shows that plaintiff was under, or had been brought under the control of the conductor, or that he was acting as brakeman, or had been requested to do so. So far as this count informs us, the plaintiff was a mere passenger-on the train; and, so far as the right to control or direct the movements of the plaintiff is shown in this count, the conductor would have had as much authority over any other passenger, or even a by-stander, as he had over him. Such order or direction, as averred, is entirely without the routine of the conductor’s duties, and could not, by its abuse, fasten a liability on the railroad corporation. — Gilliam v. S. & N. Railroad Co., 70 Ala. 268. The demurrer to this count ought to have been sustained.

In permitting the witness Suddeth to institute a comparison between the drawheads and couplings employed by the defendant railway company and those used on the M. & O. R. R. Co., and to give his opinion that the connecting appliances of the latter are less dangerous than those of the former, the Circuit Court erred. It is certainly the duty of corporations, and of all others employing servants, to see to it that their “ ways, works, machinery and plant,” shall not be man-traps, and not to expose their employees to needless hazard; and in selecting between different machinery and instrumentalities, they must keep themselves reasonably abreast with improved methods, so as to lessen the danger-attendant on the service. They are not, however, required to adopt every new invention. Something must be left to enlightened judgment and discretion. It is supposed that, in such matters, even the skillful and experienced will frequently differ in the choice of instrumentalities; while neither should be adjudged negligent, for not comforming to some other method, believed by some to be less perilous. The correct rule is declared in L. & N. R. R. Co. v. Allen, 78 Ala. 494, 503, as follows: “A railroad company’s duty to

its employees does not require it to adopt every new invention or appliance useful in its business, although it may serve to diminish risks to life, limb or property, incident to its service. It is sufficient fulfillment of duty to adopt such as are in ordinary use, by prudently conducted roads engaged in like business, and surrounded by like circumstances.” Applying this principle to the present case, if the drawheads and bumpers used by defendant were such as were employed by many well-conducted roads, this would repel all imputation of negligence founded on their mere structure, although other roads, even a majority of them, adopted a different pattern. 'Witnesses, who have sufficient knowledge to speak on the subject, should be allowed, not to compare the practice of one road with that of another, but to testify to the general rules of railroads on the subject, and may give opinion testimony as to the safety or perils attending the different methods. The witness Suddeth did not show himself competent to give his opinion, and did not predicate sufficient data to show its admissibility.

In most suits of the class we are dealing with, the question of contributory negligence becomes an important inquiry. It is among the uncontroverted facts in this, case, that the defendant railway company had an established rule, that, in coupling cars, the servant should not stand on the track, nor between the cars, but should use a stick, instead of the hand, in lifting the link in coupling. It is also testified, that sticks are kept on the train for the purpose, and that they were adapted to the use. There was also a printed rule, that couplers who disregarded this rule should be discharged. If the plaintiff had used a stick instead of his hand, he would have escaped the injury. The plaintiff, who had acted as brakeman, and had done coupling on defendant’s road for two months or more, testified that he had seen coupling done both by the hand and by the use of the sticks, but that he did not know of said rules of the road, until after he had received the injury complained of. This raised a proper inquiry as to contributory negligence. If the plaintiff, either from a knowledge of the rules, or from observing the practice of couplers, had learned the rule or custom of the road, not to use the hand, but a stick in coupling, and, in disregard of such rule or custom, went on the track, between the cars, and attempted to couple with his hands, this would be contributory negligence, and would deprive him of all right to recover in this action.

Charges 2, 3, and 4, given at the instance of plaintiff, are severally subject to criticism, in not submitting the inquiry of contributory negligence as a part of the hypothesis. 3 Brick. Dig. 672-3. But we do not decide this question. E. T., Va. & Ga. R. R. Co. v. Clarke, 74 Ala. 443.

Charge 6 is an incomplete sentence, probably the fault of the copyist. We can not properly consider it in its present imperfect condition.

Charge 7 is but an embodiment of the principles asserted in the fourth count of the complaint. As that count sets forth no legal cause of action, the charge is equally faulty.

Eoi tbe errors pointed out above, tbe judgment of tbe Circuit Court must be reversed, and tbe cause remanded.

Eeversed and remanded.