Columbus & Western Railway Co. v. Bradford , 86 Ala. 574 ( 1888 )

McCLELLAN, J.

The liability of a master or employer for injuries to an employee, at common law, was limited to those cases in which the damages claimed resulted from the negligence of the master or employer himself, or some employee higher in authority in the common service than the plaintiff, as distinguished from the negligence of fellow employees, bearing the same or inferior relations to the master as those borne by the party injured. To an action for injuries sustained through the fault of the employer or superior employee, it was a good defense, that the complaining employee had, by failing to exercise due care, contributed to the result of which he complained. . Contributory negligence, which would defeat an action, might have consisted of a failure on the part of the plaintiff, either to reasonably give notice of the defect in appliances used in his employment, or of the negligence of his superiors, if known to him, which produced the injury; or, of a failure, after having given such notice, to quit the. service to which such defect or negligence was incident, after a reasonable time had elapsed for its correction. The “Employee’s Act” of 1885, now, with slight changes in phraseology and arrangement, constituting sections 2590, 2591 and 2592 of the Code, enlarged the liability of the master, by extending it to cases in which the injury had resulted, under certain circumstances and conditions, from the negligence of fellow employees. The existing law .was supposed to fall short of the attainment of justice, in that, and only in that, no action was allowed for the negligence of a certain class of persons. The statutory purpose was to charge the master for the negligence of this class of persons in his employment, in the same manner, under like conditions,' and to the same extent as he was before charged foi’ his own negligence, or that of superior employees. In the effectuation of this purpose, it became necessary to go further than a mere declaration of liability for the negligence of the fellow-servants of the plaintiff, and to guard against a construction of that declaration which would give to the employees redress for the fault of their co-employees, to which they would not have been entitled for that of the employer, or of a superior servant of the common master, To this end — to preserve to the master the same defense against the negligence of his servants, as he had against the consequences of his own carelessness — the legislature declared, that he should not be liable if the complaining employee knew of the defect or negligence which caused the injury, and, not being aware that the fact was already known to the master, or some person superior in authority, failed to communicate his knowledge to the employer, or superior employee. This provision of the statute, therefore, relates to purely defensive matter — the contributory negligence of the plaintiff, which, in this case, was properly omitted from the complaint, and left to be brought to the attention of the court by plea.—Thompson v. Duncan, 70 Ala. 334; M. & E. Railway Co. v. Chambers, 79 Ala. 338; Wilson v. L. & N. R. R. Co., 85 Ala. 273; M. & B. Railway Co. v. Holborn, 84 Ala. 133; C. & W. Railway Co. v. Bridges, ante, p. 448.

The demurrers to the third, fourth and fifth counts of the complaint, which are framed under, or with reference to section 2590 of the Code, so far as they are predicated upon the failure of these counts to negative this species of contributory negligence, were properly overruled.

What is here said, however, must not be understood as having any application to the last clause of section 2590, which provides that the master or employer shall not be “liable under sub-division one, unless the defect therein mentioned arose from, or had not been discovered or remedied, owing to the negligence of the master or employer, or of some person in the service of the^ master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition.” This provision manifestly relates, not to defensive matter,. but to the negligence of the defendant, and facts would probably have to be averred in the complaint, if drawn under the first clause of the section, which would show that the defect causing the injury was within these limitations. As this point does not arise in the case at bar, however, it is not decided.

The suit was properly instituted by the personal representative of the deceased employee, and it was unnecessary to allege that the intestate left surviving him any heirs at law. A collateral fact of this character, the existence of which in almost all cases is common knowledge, will be presumed.—Thomson v. Duncan, 76 Ala. 334.

The first count of the complaint is good under section 2589 of the Code, in connection with, the common-law liability of the master to his servants, and to strangers, for his own negligence. The sixth count, even if some defects, which are so patent as to justify their being treated as clerical misprisions, be not considered, is bad, but none of the demurrers reach the point of its infirmity. The third, fourth and fifth counts, we think, sufficiently aver the facts necessary to constitute liability under one or the other of the last three sub-divisions of section 2590. We, therefore, hold that the action of the court below, in overruling the several demurrers to the complaint, was Nee from error.

The defendant pleaded the general issue, contributory negligence, and several other special pleas, in denial of a right of recovery under each count of the complaint; and issue was joined on all of these pleas.

The evidence necessary to an understanding of the opinion of the court, may be stated as follows: Plaintiff’s intestate was in the employment of the defendant as a stone-mason, under the control of one Prather. At the time of the injury, he was working on a large stone, intended for use in defendant’s bridge over the Tallapoosa river. This stone had been, under the direction, and with the assistance of Prather, placed between a spur track of defendant’s road and an embanlrment which was seven or eight feet in height, and nearly perpendicular. The space between the ends of the ties under the track and the foot of the bank, was from four to six feet. This space continued along the length of the spur track, but, at some distance west of the point at which the stone was placed, it was obstructed by timbers. The distance between these timbers and the stone is variously stated by the witnesses, at from eighteen feet to twenty yards. After the stone had been placed in this position, Prather remained there until a train had passed in on the spur track, and out again, Avithout striking the stone. As the train passed and repassed, Prather and the intestate and another employee left the stone, Prather and the other employee going to the other side of the track, and the deceased towards the end of the switch. Prather then left, telling the deceased and the other employee, “You must get out of the way when a train comes in here,” as testified by one witness; or, according to another, “Keep out of the way of the train.” A half hour afterwards, the train returned, and again passed in on the spur track, going beyond the stone, but without striking it. This time, the other employee, one Oliver, went as before to the other side o£ the spur track, and intestate again went back towards the end of the switch. While the train remained on the spur track, the intestate and Oliver resumed work on the stone, and were so engaged when the train started out again; Oliver working on the end of the stone next to the train, and facing west, and the intestate at the other end, facing east towards the approaching train. While thus engaged, and while the train was passing the stone, the intestate remarked to Oliver, according to one witness, “I believe that standard will strike this rock;” or, as stated by another, “The standard is going to'hit the. stone.” Oliver turned, and saw that a standard had slipped partially through its socket, and extended below the body of the car. The standard, when Oliver first saw it, was from twenty to thirty feet from the stone, and the train was moving very slowly. The train proceeded; the standard struck the stone, turned it round, and the intestate was caught between it and a plank standing against the embankment, and so badly crushed that he died a few hours afterwards.

Whatever else the evidence may tend to show, it can not be gainsaid that the deceased and Prather were in the common employment of defendant; that the nature and terms of their respective employments and duties made Prather the superior of Bradford, and bound the latter to obey the orders and directions of the former; that these instructions, with-respect to the work on which deceased was engaged at the time of the accident, were that he should prosecute that work except when a train should come in on the spur track, along which the stone had been placed; and that when a train should come in on that track, he should desist from the work, and get out of the way of the cars. These directions could not have been misunderstood. What was meant by them was illustrated by Prather’s act in leaving the stone, and crossing over to the other side of the track, when the train first passed in and out. Bradford could not have considered that they were not meant to apply after it had been shown that a train normally appointed would not collide.with the stone in passing, because they' were given after this had been demonstrated. It was shown that he did not so interpret them, by the fact that he left the place the third time the train passed. It is not pretended that he could not, or did not, see the train as it approached the fourth and last time. It is not- hinted that there was any thing whatever to prevent a like compliance with this order on this last occasion, as on the three former ones. On the contrary, the proof is positive, that he could and did see the train, and could without difficulty, or even inconvenience, have complied with the order, and, by compliance, have assured his safety. His failure to do so, under the circumstances, left him in a position in which the defendant owed him no duty of protection, further than would result from the absence of gross negligence, or recklessness, and there is nothing in the case tending to show either. Aside from a consideration of the evidence of contributory negligence, strictly speaking, on the part of the employee, he was where he had no right or business to be. The theory of the complaint, which in every aspect predicates the right of recovery on the assumption that the plaintiff’s intestate was rightfully at the place of the accident,'therefore, falls to the ground. The case has not been made out; and on these considerations alone, the general charge for the defendant should have been given. Pfeiffer v. Ringler, 12 Daly, 437; Wright v. Rawson, 52 Iowa, 329.

But our conclusion need not be rested here. The conduct' of the plaintiff’s intestate was not that of a prudent, careful man. He did not exercise that degree of caution and diligence, which a prudent and careful man, similarly situated, would have exercised. He was warned of the danger. Not only so, but he was ordered away from the point of danger, by one whose directions it was his duty to conform to. There was nothing to prevent his avoiding the danger. His avenue of escape was pointed out to him, and was entirely feasible and easy. Had he availed himself of it, he would not have been injured. His failure to avail himself of it was the result of forgetfulness, inattention, carelessness or recklessness, but for which he would not have been injured, and which, therefore, gross negligence not being imputed to the defendant, contributed proximately to the injury; and the plaintiff being charged with the negligence of his intestate, he was not entitled to recover; and this notwithstanding there may have been negligence on the part of the defendant, or its other employees.—Lilly v. Fletcher, 81 Ala. 234; M. & F. Railway Co. v. Thompson, 77 Ala. 458; Campbell v. Lunsford, 83 Ala. 512; Woodioard Iron Co. v. Jones, 80 Ala. 123; Wilson v. L. & N. R. R. Co., 85 Ala. 269; Prather v. R. & D. R. R. Co., S. C. Georgia, 1888; Central R. R. Co. v. Mitchell, 63 Ga. 173; Air Line R. R. Co. v. Ray, 70 Ga. 674.

The evidence in this case, which supports the state of facts from which the conclusion of contributory negligence is drawn, is without contradiction, and free from any adverse inferences. In. such case, the question of contributory negligence vel non becomes one of law, and is for the decision of the court.— Wilson v. L. & N. R. R. Co., supra; A. G. S. R. R. Co. v. Jones, 71 Ala. 487; E. T. V. & G. R. R. Co. v. Bayliss, 74 Ala. 150. On this principle, the court below should not have submitted the question of contributory negligence to the jury, but should have instructed them to return a verdict for the defendant, if they believed the evidence. The circuit judge erred, therefore, in refusing to give the general affirmative charge requested by the defendant, and also in refusing to give the second special instruction asked.

The first special charge requested by the defendant was properly refused, because it was based on an assumption as to the directions given by Prather to plaintiffs intestate, which was not supported by the evidence. There was no evidence, that Prather directed Bradford to leave ihe cut when a train came in on the spur track.

That part of the general charge of the court, to which exception was reserved, should not have been given, because there was no evidence to support some of its hypotheses; but the action of the court in this particular, would not operate a reversal of the case.

For the errors pointed out above, the judgment will be reversed, and the cause remanded.