Louisville & Nashville Railroad v. Richardson , 100 Ala. 232 ( 1893 )

HAEALSON, J.

There was evidence tending to show that hostlers had been in the habit, before plaintiff was injured, of indulging 'the practice of moving switch engines about the engine yard of defendant, from which the jury might reasonably have found, that the practice had come to the knowledge of the company arid was pursued by its acquiesence, notwithstanding the fact, the jury might have believed from the evidence, that.the company had promulgated verbal rules against such practice.

The question propounded to the witness, Ed. Wright, on his cross examination by plaintiff—“Was it the custom and habit of hostlers to move switch engines in the yard, up to and prior to the time of plaintiff’s injury ?” as for the objection made to it, that such custom of violating the rule would not tend to make the defendant liable, was properly allowed. And so, the other question propounded to plaintiff as a witness was proper, viz., “Had you seen Ed Wright handling and moving switch engines around there, in the yard before you were hurt, and up to that time?” The object of these enquiries evidently was, to make it appear that hostlers, in the time enquired about,. had been in the habit of indulging a practice of moving switch engines about the engine yard, from which the jury might reasonably believe, that the practice had, from long indulgence, come to the knowledge of the company, and was pursued by its acquiesence, notwithstanding they might further believe from tbe evidence, that the company had promulgated verbal rules against such a practice.— Whitaker v. D. & H. C. Co., 126 N. Y. 544 In this case it is well said, that, “A railroad company does not discharge its whole duty to the public, by merely framing and publishing proper rules for the conduct of its business and the guidance and control of its servants, but it is also required to exercise such a supervision over its servants and the prosecution of its business as to have reason to believe that it is being conducted in pursuance of such rules.”—Wabash v. McDaniels, 107 U. S. 454

The question as to what person, on the occasion of the injury to the plaintiff, had charge or control of the engine, is one of fact, properly left to the jury, with instructions under the evidence in the cause. Generally, we would say especially when he is on and running the engine, or has the actual custody, that the engineer has control of it. It may be, however, when he is not in the active manipulation of it, that other persons control it. It will not do to say, therefore, as a matter of law ioho has the control or charge of an engine, at any particular time, when it is fairly inferrible from the evidence that either one or the other of two persons may have such control. Jn. each particular case, time, place and circumstance must determine the question of immediate control.—L. & N. R. R. Co. v. Mothershed, 97 Ala 261. In this case the evidence tends to show, that the engine was a switch engine; that it was over an ash pit to be cleaned; that the engineer was on the ground, on one side having a gland-valve packed; that Ed Wright was a hostler, whose duty it was to move engines about the yard; that he had orders not to move switch engines ; that notwithstanding these verbal orders he did move them, frequently; that he got on the engine and opened the throttle for the purpose, as he swears, of moving the engine, and caused the damage to the plaintiff. Under these circumstances, the trial court instructed the jury, “If Ed Wright was a mere intruder and had no authority on the engine, and had no right there, and did not have charge or control of it, then any negligence he might have committed would not be imputed to the defendant, any more than if any other intruder had gone there and committed it.” This instruction placed the matter before the jury in a legal and proper manner. They might have believed, under the evidence, owing to the view they took, and their belief of it, that Wright had or that he did not have instructions about moving switch engines in the yard, prior to the time of this injury; they might have believed, that he had control of the engine at the time he moved it, or that he was a mere intruder having no business on the engine, and these were questions falling properly within their adjustment.

Applying these principles to the charges requested, and it appears that chai'ges Nos. 1 and 2 requested by defendant cannot be sustained. They are liable to confuse and mislead. Wright was either, under the evidence an intruder or he was rightfully there, and had charge or control of the engine; and the charges serve to impress the jury that he had the right to get on the engine, without having authority to do anything after he got there, whereas, if he had no authority to move the engine, the evidence is wanting to show that he had any business on it.

The third charge is not insisted on. The 8th and 9th are general charges, improper to be given where there is conflict in the evidence.

Nos. 5 and 7 were properly refused. If such orders were issued and such a rule was in existence, still there was evidence tending to show, that the company did not require obedience of them, and sanctioned their violation, which evidence the charges ignore.

No. 10 was properly refused, since there was evidence tending to show such a custom.

Nos. 4 and 6 assert correct propositions of law, the sixth, that the hostler and engineer could not have had charge or control of the engine at the same time; and th& fourth, that if the engineer had charge and control of the engine at the time the injury was inflicted on plaintiff, then the jury must find for the defendant. The evidence shows that the act of the hostler alone caused the injury, and there is no evidence that any joint control or authority over the engine had, by any competent authority, been conferred on the hostler and engineer; and the proposition seems to be a plain one, that if such joint authority had not been thus vested in them, and the engineer, and not the hostler, at the time of the accident, was in control, then the hostler had no right to interfere to move the engine, and his conduct was that of a trespasser or intruder.

Eor the error in refusing these charges—4 and 6—the judgment must be reversed.

Reversed and remanded.