Woodward Iron Co. v. Herndon , 114 Ala. 191 ( 1896 )

McCLELLAN, J. —

An engineer, who is in the employment of a railway company and in charge and control of an engine, which he is at the time running over a track of the company, is prima facie in the discharge of his duties as engineer under such employment.

Moreover, counts 23, 24, and 25 of the complaint pursue the language of the statute in the respect under consideration : Liability is by the act made to rest upon the employer for an injury resulting from the negligence “of any person in the service or employment of the master or employer, who has charge or control of any signal points, locomotive, engine, switch, car, or train upon a railway, or of any part of the track of a railway.” Code, § 2590, subdiv., 5.

The court, therefore, properly overruled the demurrer to these counts which proceeded on the assumption that it was necessary for them to aver that the engineer was at the time of the injury in the discharge of the duties imposed by his employment.

The averment of negligence in the 17th count is not duplex, as insisted by the demurrer thereto. The negligence counted on is that of the person intrusted with superintendence in allowing or permitting trains to be run along a track obscured by smoke without requiring precautions to be taken by those in charge thereof to warn persons on the track — other employes of defendant — of their approach. “Proper signals” and “other necessary means of precaution,” to this end; are but one and the same thing, viz., the steps dictated by due care and prudence to give notice of the approach of trains which could not be seen because of the dense smoke.

The other ground of demurrer to the 17th count is that the count, which claims for the negligence of a person having superintendence intrusted to him by the employer, whilst in the exercise thereof, fails to aver the name of such person, or that his name is unknown to the plaintiff.

In McNamara v. Logan, 100 Ala. 187, it was held to be unnecessary in a count under sub-section 1 of section 259,0 to aver the name of the person intrusted by the employer with the duty of seeing that the ways, works, machinery and plant of the employer were in proper condition. Through inadvertence and because of not recalling at the moment the considerations upon which that ruling was rested, it was said in the opinion in L. & N. R. R. Co. v. Bouldin, 110 Ala. 185, that a count under sub-section 1 of section 2590 should aver the name of the person charged with negligence in respect of the condition of the ways, works, machinery and plant of the defendant. We are satisfied with the contrary ruling in McNamara v. Logan, supra, for. the reasons there given, and the case of L. & N. R. R. Co. v. Bouldin, so far as it conflicts therewith, must be overruled. It was also held in the case last mentioned that a count, going upon the negligence of a person intrusted with superintendence 'under the second clause of section 2590, should aver the name of such person, and upon the considerations which led to the rulings in the cases of M. & O. R. R. Co. v. George, 94 Ala. 199 ; George v. M. & O. R. R. Co., 109 Ala. 245, and So. Railway Co. v. Cunningham, 112 Ala. 496, we now adhere to that view, and hold that the de~ murrer to the 17th count for its failure to aver the name of the superintendent whose negligence is relied upon, or plaintiff’s ignorance thereof, should have been sustained.

The action of the court in sustaining a demurrer to the second plea will not be reviewed. In the first place, the demurrer is not in the record, and, of course, the grounds assigned are not stated in the abstract. In the second place, the defendant had the full benefit of the facts laid in this plea on the trial under other pleas.

Defendant was not prejudiced by the action of the court in disallowing the question to the witness Andrews : “Do you know why they did stop?” This question was fully answered by this witness in other parts of his testimony. The same may be said with respect to the exclusion of the question to the witness Ritchie as to whether a hand-car had ever before been run through the smoke without stopping and sending a 'flagman forward, and of the exclusion of the testimony of the witness Rockett, that he had been there with Parsons for about a month, and had seen him stop and send a flagman through the smoke.

The rules and customs obtaining on other railroads as to the right of way between trains and hand cars were not pertinent to any issue in this case. No question was involved here as to such right of precedence, but the trial proceeded upon the assumption that the train which collided with the hand-car, on which plaintiff’s intestate was riding, had the right of way over the handcar . The issue upon the one hand, was whether those in charge of the train exercised this unquestioned right in a careful and prudent manner, and, upon the other, under the plea of contributory negligence, whether those in control of the hand car had a right to assume, under all the circumstances, that no train was approaching through the smoke. No injury could possibly have resulted to the defendant from the exclusion of this impertinent testimony.

The question to the witness Rockett: ‘ ‘Did you ever follow a train through there that was coming from Dolomite?” objected to by the defendant, was not answered. The question : “Did you ever follow close behind a train coming in from Dolomite to the furnace?” which was answered, was not objected to. Moreover, the answer was favorable to the defendant.

It does not appear from the abstract that plaintiff elicited airy testimony from defendant’s witness Owen to the effect that the men with the hand-car were likely or liable to be out anywhere on the road, though a question calculated to draw out such testimony, if the facts admitted of it, was assumed in the question put to this witness on the rebutting examination by the defendant. The objection interposed to defendant’s question as to whether these men were likely or liable to be in the smoke without making their presence known by sending a man ahead, on the ground that the proposed evidence was not in rebuttal of anything adduced on cross-examination, was, therefore, properly sustained.

Conceding that the impracticability of running handcars used by track men on stated schedule was a fact material to be proved, all of the testimony of the witness White which was competent on that inquiry was allowed to go to the jury. That part of it which was excluded was obviously inadmissible.

The first count charges that the engineer was negligent in failing to ring the bell or blow the whistle “when entering the smoke which covered the track.” This averment finds support in the testimony of several witnesses, going to show that the only signal given at all was given when the engine was distant fifty yards or more from the smoke. The blowing of the whistle at such distance can not in any accurate sense be said to be the giving of a signal of alarm “when entering the smoke.” The court, therefore, properly refused to give the affirmative charge on this count of the complaint.

Other counts of the complaint rely upon the failure of the engineer to ring the bell, blow the whistle, &c., at short intervals while passing through the dense smoke, which covered and obscured the track for 250 or 300 yards, embracing the point of collision between his train and the hand-car on which plaintiff’s intestate was riding. Whether the engineer was remiss in this respect the evidence was conflicting. The question was, therefore, for the jury. There can, we think, be no doubt that such omission, under the circumstances shown in the evidence, if the jury found such to be the fact, was negligence on the part of the engineer. And this negligence was not rendered, innocuous by tlio mere fact tliat the hand-car, entering the opposite side, was in the smoke before the engine reached it. Notwithstanding such a state of facts, it may well be that Neal and his companions might yet have escaped upon being warned of the danger threatening them by signals from the engine as it came meeting them through the smoke. The charge marked (i), of the defendant’s series, was, therefore, properly refused.

The issue of contributory negligence vel non was an important one on the trial, and the action of the court below on requests for instructions by the defendant, presents for our consideration whether plaintiff’s intestate was as matter of law, guilty of negligence which proximately contributed to his own injury and death. He was the foreman of the track men who were using the handcar, and as such had charge and control thereof when it was run into the smoke where the collision occux-red. The place of the collisioxx, its character, the uses to which the tracks aloxxg there were put, being within the yard of defendant, the distance from the scene of the accident to the point whence the train which ran over the hand-car started, the locatioxi of the side track between said point and the smoke coverixxg the track oil which the collision occurred, and, in shox*t, a full description of the scene of the catastrophe, will appear froxn the report of the case. Having refei-ence to that, we are now to declare the law of contributory negligence applicable to the several phases of the evidence as to the conduct of the intestate on the occasion of his death ; or, rather, as to the situation with reference to which his conduct is to be measured, for there is no conflict or contrariety of evidence, as to what the conduct of the intestate was : He went at great speed into the smoke without stopping to ascertain or assure in any way the safety of so doing. We do not doubt in view of the uses to which .the track at the time obscured by the smoke was put, the liability or likelihood of the presence of an engine there at any time, Neal’s knowledge of the situation, &c.,.&c., that his conduct in plunging headlong into this volume of of smoke extending for 250 or 300 yards along the track and totally obscuring it, was negligence per se, and to be so declared by the court, unless his conduct is relieved in this respect by Ms proximity to the train which preceded him into the smoke. If there had been no such train, his duty was clear, to stop his hand-car before entering the smoke and send a flagman forward through the smoke to prevent any engine or train coming down the track until the hand-car had passed through the smoke. Failing this would be negligence as a matter of law. On the other hand, it is, we think, equally clear that to have run a hand-car into the smoke so closely behind a train as that the latter would perform all the functions of a flagman sent forward, and prevent another train from coming down the track before the hand-car reached a place of safety, would not be negligence at all, nor any evidence of negligence. The real facts of the case seem to lie between these extremes. There was a train which preceded the hand-car through the smoke, but the handcar was not sufficiently close behind the train as to get through the smoke before the train had taken a side track several hundred yards beyond the smoke, and thus made way for another train to come down on the main track into the smoke before ■ the hand-car had emerged from it. If the hand-car was so far behind the train at the time the latter entered the smoke as that there was time for said train, at the speed it was known by those on the hand-car to be running, to x'each and take the side-track beyond the smoke, and for the other train to come thence down the track at the speed it was accustomed and required to run, that is, at the rate of only two or three miles an hour, and meet the hand-car in the smoke, we do not hesitate to say, that plaintiff's intestate was guilty of negligence which proximately contributed to his death in following the first mentioned train into the smoke at such a distance behind it. The evidence as to the distance between the incoming train and the hand-car following it at the time the former entered the smoke was conflicting; and there was evidence tending to show that the train which struck the handcar started down the track from a point several hundred yards beyond the smoke immediately the incoming train araived and went onto the side-track, and that it proceeded down the track and into the smoke at a speed of from eight to twelve miles an hour ; a great deal faster than it was accustomed and required to run along there. If the jury found this. to be the fact, and further that but for this unusual rate of speed of the down-coming train the hand-car would have gotten through the smoke and to a place of safety, or where a probable collision could have been foreseen and avoided, before the train entered the smoke, the question of negligence vel non on the part of the plaintiff’s intestate,in entering the smoke thus behind the incoming train, was one of fact for the jury, and not one of law for the court. We would not say as matter or conclusion of law that the intestate was guilty of negligence proximately contributing to his death, if, knowing the usual rate of speed of the yard engine to be two or three miles an hour, he reached the smoke sufficiently near behind the incoming train to have gotten through it in time to avoid a collision with any train that might be coming down the track had such train moved at its customary speed. There might well be two opinions or conclusions upon that inquiry on all the evidence in the case ; and it was, therefore,for the determination of the jury.

Under the foregoing views of the case, charge (e) requested by the defendant was properly refused, because it pretermits all reference to the incoming train which the hand-car was following ; charge (g), because it fails to take into account the evidence tending to show that the yard engine and train came down the track much more rapidly than was customary, and much in excess of the prescribed rate of speed; charge (h), because there was evidence in the case from which it was open to the jury to infer that Neal knew how close his hand-car was to the incoming train when the latter entered the smoke, though he could not see it at that particular time because of the intervention of a curve and an embankment between him and the train at a point just short of the smoke, and the charge would have taken the consideration of this evidence from the jury; and charge (i), because it takes away from the jury the right to consider the evidence tending to show that Neal was close enough to the incoming train to have gotten through the smoke without injury had the other train been run at its usual speed. But charge (f) refused to the defendant should have been given. It postulates that Neal did not see and could not know how far the incoming train was ahead of his hand-car when he entered the smoke. If the jury found this to be a fact, as they might have done, their further conclusion should have been that he was guilty of negligence in not stopping before entering the smoke and sending a flagman forward.

For the errors committed by the trial court, in overruling the demurrer to the 17th count and refusing charge (f) asked by the defendant, the judgment must be reversed. The cause is remanded.

Reversed and remanded.