Brown v. Louisville & Nashville Railroad , 111 Ala. 275 ( 1895 )

McCLELLÁN, J.

The circuit court erred in overruling plaintiff's demurrer to second plea to seventh count of the complaint. We are unable to see that the plaintiff could be charged with negligence, for that he did an act in violation of a rule, unless he knew the rule. Negligence can only be affirmed in respect of situations and conditions known to the party to whom it is imputed. Surely a man could not be guilty of a negligent violation of a rule of which he had no knowledge, the act done not being negligence per se. Notice is not in such cases of the equivalent of knowledge. A brakeman would have notice of a rule forbidding him to uncouple moving cars if he had information that his employer had adopted and promulgated a set of rules for the conduct-of employés. This would put him on inquiry, which, if pursued, would lead to a knowledge of the particular rule. Still, until the inquiry has been made and the knowledge gained, his conduct as to care or negligence cannot be measured by the rule — a factor which did not operate upon him in the act done. Pie might be negligent in not pursuing the inquiry; but such negligence would be only a remote cause of the injury suffered by doing the act in a manner forbidden by the unknown rule. Upon these and like considerations, it has been more than once decided by this court that knowledge of the rule on the part of the complaining employe is necessary to the imputation of contributory negligence to him in the doing of an act violative of its provisions.— Ga. Pac. Ry. Co. v. Propst, 83 Ala. 518; Louisville & Nashville Railroad Co. v. Perry, 87 Ala. 392; Louisville & Nashville Railroad Co. v. Hawkins, 92 Ala. 241.

That the rale pleaded was not practicable of observance, consistently with the duties imposed upon and required of brakemen by the company,was matter for replication to this plea, and hence, so far as the demurrer proceeded on that ground, it was properly overruled. But this matter was set up by the replication to the plea, and adjudged bad on the defendant’s demurrer thereto. This was error. Plaintiff’s third replication to the second plea averred that it was not practicable to perform the duties of said employment without violating said rule. Tl:e act in violation involved in this case not being necessarily negligent in itself, but only because prohibited by the rule, if the duty which plaintiff’s intestate owed to the defendant could not be performed except in doing an act, necessary to be done, in the mode prohibited by the rule, the defendant, having imposed this inconsistent duty on the brakeman, must be held to have waived the observance of the rule in respect to it. — Memphis & Charleston R. Co. v. Graham, 94 Ala. 545; Hissong v. Richmond & Danville R. R. Co., 91 Ala. 514.

It was upon the plaintiff, claiming, as he did, damages for the negligence and wrong of fellow servants of his intestate, to state a case within section 2590 of the Code. The 9th, 11th, 15th and 16th counts were intended to present a cause of action under the 5th subdivision of that section, as for the wrong of a person in the employment of the defendant who had charge or control of a locomotive, engine, signal point, &c., &c. The person whose negligence was thus counted upon was the fireman, and this upon the theory that he had charge or control of the engine, for the purposes of this case. Now, ordinarily, the engineer, and not the fireman, is in charge of the engine. But, as has been decided by this court, if it be shown tobe the duty of the fireman to receive signals from a switchman and transmit them to the engineer — if, in short, he is under a duty to keep a lookout for the purpose of acquainting the engineer with the situation, that the engine may be handled accordingly — he may be said to be, for that purpose, a person in charge of the engine, in that he is discharging'a duty which primarily rests on the engineer. — Richmond & Danville Railroad Co. v. Jones, 92 Ala. 218. This duty on the part of the fireman arises from, and is rested upon the impracticability of the engiheer’s personally keeping the necessary outlook under certain circumstances, as where, from his position on the engine, he cannot see along the fireman’s side of his train. Not being a duty universally springing- from the relation of fireman, but dependent upon particular facts — and the existence of these facts being essential to investing the fireman with the responsibilities of a person in charge of the locomotive — the facts tliemselves must appear in the complaint, or.the conclusion from them, that such was the duty of the fireman in the particular case, must be therein averred. The counts in question — 9, 11, 15 and 16 — failed to aver these facts or this conclusion. The demurrer interposed to them was well sustained on this ground.

These counts having been amended by the addition of an averment that it was the fireman’s duty to have notified the engineer, &c., the court should, in our opinion, have received the evidence of Jemmison, going to show that the duty of keeping a lookout and informing the engineer of the situation with which they were dealing was upon the fireman. Such aepms to have been the course pursued in Richmond & Danville Railroad Co., v. Jones, supra; and we think it ought to have been followed in this case.

The abstract states that, “while cross examining this witness, the court asked said Comer the following question: ‘Mr. Comer, how many men have you killed or injured by running your engine over them?’ The defendant objected to this question, and the court sustained this objection, and to this ruling plaintiff excepted.” The court asked the question, not the plaintiff, according to the abstract. The court is under no duty to either party to ask any question of a witness, nor to persist in any question lie may have propounded, though proper in itself, whether objected to or not. The withdrawal of this question by the court was, therefore, not' a matter of which either party could complain. It is very probable that the abstract is incorrect in ascribing this question to the court, instead of the plaintiff. But we must take the abstract as we find it, except in those particulars in which its correctness is questioned by the appellee ; and it must affirmatively show error. We do not at all pass upon the abstract competency of the facts which the question tended to draw out.

The only other question we need to consider has reference to the propriety of the court’s action in giving the affirmative charge for the defendant. It is chiefly insisted that plaintiff was entitled to have the case presented by the 11th count submitted to. the jury. That count relied upon the negligence of the fireman, as being 'that of a person pro hac vice in charge of the engine, in that he knew the intestate was in an unsafe place — a place in which he was liable to be killed if • the engine were moved back, as in fact it was2 — and that he negligently failed to notify the engineer of Brown’s peril; the theory being that had the engineer been properly informed he would not have moved the engine as he did, and Brown would not have been killed. So far as the abstract shows, no demurrer to this count was interposed after its amendment by inserting therein the averment that it was the fireman’s duty to-have informed the engineer of Brown’s peril; but the defendant took issue upon it, and, as far as the abstract shows, did not rely upon contributory negligence on the part of Brown as a defense to it. The sole inquiry on this part of the case, therefore, is whether the evidence tended to support the material averments of this count. We think it did. The jury, we think, might have reached the following conclusions — it was open to them on the evidence to have done so : (1) that the fireman knew that Brown was between the car and tender, or about to go between them to uncouple them, and knew also that the engineer who was moving the engine was not aware of this ; (2) that the fireman’s duty on this state of fact was to inform the engineer of Brown’s position, and that he negligently failed to discharge this duty ; (3) that in consequence of the engineer’s ignorance of the fact that Brown was about to go, or had gone, between the cars, he moved the engine further and more rapidly than he otherwise would have done, being under the impression that the movement signalled for by Brown was not for the purpose of giving slack, as he would have known it was had he been aware that Brown was going or had gone between the cars, but for the purpose of shunting the car onto the side track; and (5) that the increased movement of the engine, consequent upon the engineer’s erroneous impression, which the fireman could and should have removed from the mind of the former, was not anticipated by Brown, and was the occasion of his being run over and killed. And, upon these conclusions of fact, the jury should have returned a verdict for the plaintiff. The general charge took all of this away from them, and the giving of it was error.

The question whether an employer is liable in damages for the wanton or willful misconduct of his servant, whereby another servant is injured, under section 2590 of the Code, does not arise on the abstract before us, and, under the operation of the doctrine of Louisville & Nashville R. R. Co. v. Markee, 103 Ala. 160, will probably not be in the case on another trial. For these reasons we decline to consider it, or to reconsider it, if, as is insisted for appellant, it has already been determined by this court.

The judgment of the circuit court must he reversed. The cause is remanded.

Reversed and remanded.