Schlaff v. Louisville & Nashville R. R. , 100 Ala. 377 ( 1893 )

COLEMAN, J.

Plaintiff's intestate was in the employment of defendant as brakeman, and came to his death, as alleged in the complaint, by reason of the negligence of the defendant. The action was founded under subdivision one of section 2590 of the Code. The complaint consisted of four counts, and the defect averred in the first, second and fourth counts, relate to the construction of a bridge over the railroad track of the defendant. It is averred in the first and second counts that the horizontal beam and timbers overhead were too low to permit a brakeman to stand on top of the freight cars and pass safely under the bridge ; and in the third count it is averred that the defendant was negligent in not providing “whip straps,” or other warning signals, as the train approached the bridge. The defendant pleaded the general issue and contributory negligence. The lowest estimate of the distance between the top of the car to the bottom of the horizontal beam overhead, was that placed by the witness NeSmith, and he fixes it at five feet, eleven and one half inches, while that of other witnesses, and which is more satisfactory, fixes the distance at six feet five inches. The height here referred to was that between where the braces on either side of the bridge met the horizontal beam overhead, and not to the distance from the bottom of the braces to the top of the cars. These braces were over only a part of the sides of the car.

The evidence shows that height of deceased did not exceed five feet eleven inches. The wounds which are supposed to have caused death were either across the forehead in front, or on the back of the head. It would seem to be physically impossible that deceased could have been near the brakes or the center board of the car at the time he was struck, as the distance between the top of the car near the brake and center board was of sufficient height to have permitted deceased to pass safely under the bridge at these places. The evidence shows that braces were fastened to the upright post of the bridge, and extended obliquely upwards and were fastened to the horizontal beam. The lower ends of the braces were not more than two or three feet above the outside edge of the cars, and the distance from the top of the car to the braces increased as the braces extended upward to the horizontal beam, to which the braces were made fast.

It is evident that a man could not stand erect on top of the cars, near the outside edge, or even sit down on the outside edge of the car and pass under the braces, without great risk. This would be apparent to a casual observation. The deceased was killed about midday, was nineteen years of age, had been in the employment of defendant continuously for four months at the time of the accident and passed over this track ■ and under this bridge almost daily during the entire term of his service of four months. The evidence to sustain the plea of contributory negligence was that deceased was on top of the car sitting near, or upon the edge of the car and was struck by one of the braces, the knowledge that deceased had of the location of the bridge, its construction, the position of the braces, the danger of standing or sitting on the side or edge of the car when passing under this bridge, and notice from the conductor that it was unsafe, to sleep on the edge of the cars. The knowledge of the construction and location of the bridge charged to deceased, was that necessarily acquired from his service as brakeman, and the almost daily travel in this capacity over the road. The evidence of defendant tended to show that the proper place for a brakeman was at the brakes or on the foot board, in the center, that it was placed there for their use. On this point the evidence for plaintiff was that it was customary for brakemen to use any part of the car that was most comfortable and convenient when not directly engaged in using the brakes. .At the time of the accident, deceased was not called to the brakes, and the place of the wound on the head, the height of the horizontal beam overhead, the position of the braces, the-position of the deceased when last seen just before reaching the bridge lead to the conclusion, that deceased was sitting on the side of the freight car, with his feet hanging over the edge when he was struck. The evidence shows that to a person in this position, “whipping straps” would be of no service. The court was authorized under the facts to instruct the jury that plaintiff could not recover for any neglect of the defendant in failing to provide “whipping straps” as charged in the third count.

The 5th plea of defendant, was that the “plaintiffs intestate could have avoided his alleged injury by taking the simple precaution to stoop,” &c. Issue was joined upon this plea. The joinder of issue upon this plea gave the defendant the right to introduce evidence in support of the plea, and to ask for instructions upon such evidence.—Memphis & Charleston R. R. Co. v. Graham, 94 Ala. 545; Allison v. Little, 93 Ala. 151-2. Where there are good counts, and issue is joined upon an insufficient plea, and it is clear that the verdict was rendered for the defendant upon such a plea the proper practice would be to apply for a repleader in the court below. It is not ground for a new trial. Ga. Pac. R. R. Co. v. Propst. 90 Ala. 1; 18 Amer. & Eng. Encyc. of Law, 584-5.

There was no error in excluding that portion of the testimony of the witness Shaneyfelt, to which an exception is reserved. General reputation is not competent evidence to prove the existence of a fact. After a fact has been established by competent proof, general reputation is admissible to show that the party sought to be charged on account of the fact, had knowledge of its existence. L. & N. R. R. Co. v. Hall, 87 Ala. 708. Neither was it error to exclude the statement, that some two years prior thereto, “witness saw a negro brakeman who was climbing up the ladder on the side of the car knocked off by said bridge.” It is not negligence only, which gives a cause of action, but negligence which causes injury; and which must be averred in the complaint to authorize the introduction of evidence. The 1st and 2d counts of the complaint, as stated above, particularly allege that deceased was on top of the cars and that it was the timbers “overhead” that struck deceased. The 3d count charges negligence in failing to provide “whipping straps.” The 4th count charges negligence in the construction of the bridge in that it “was so narrow, and the timbers and materials on the sides thereof put and kept so close to the tracks and rails of said railroad that there was great danger of brakemen while going upon and while on freight trains, being struck by the timbers and materials,” &c. . . ; that plaintiff’s intestate while in the discharge of his duties as brakeman upon one of defendant’s freight trains, was struck by timbers and materials,” &c. We are' not sure that we understand the position the pleader intended to place the deceased in at the time he was struck, by the averments of the count. If it was the intention to assert that deceased was “upon,” that is “on top” of the car when he was struck, it was not competent to introduce evidence, that a brakeman had been struck by the side timbers, while climbing up on the side of the car two years previous. On the other hand, if the pleader intended to charge, that while deceased was “upon,” that is while climbing up the side of the car in the discharge of his duties he “was struck,” &c., then there is not a scintilla of proof to support the averment, and the court might well have instructed the jury under this aspect of the 4th count, to find for the defendant. Under any view we take of the 4th count there was no error in excluding the testimony. Pleadings should be clear and explicit, and the pleader may frame his complaint with as many counts, as the varying phases of the evidence may require, but each count should be simple and easily understood. Evidence which does not tend to support the plaintiff’s cause of action or the defendant’s plea, but can serve no other purpose than excite prejudice should be rigidly excluded from the jury. What we have said applies also to that part of the testimony of the witness Ne-Smith, which was excluded. See Hall’s case supra, 87 Ala. 708.

8The witnesses Stollenwerck and Stocke had been railroading fifteen years, were familiar with the duties of brakemen, and were competent to testify.as to the duties of brakemen, their proper position, and the danger of riding on the edge of the cars with the feet hanging over the sides. The right of plaintiff to recover under the facts of this case as they appear in the record, conceding there was a defect in the construction of the bridge (which we do not determine) depends upon whether he was guilty of contributory negligence. We think the evidence shows that the horizontal beam of the bridge overhead was sufficiently high, to have permitted deceased to,pass safely under it, if he had been at the brakes or at the center board. The evidence shows that this was the proper position of a brakeman. The evidence also shows that the braces, from the horizontal beam to the post on the sides of the bridge were so. low where they entered the post, that it was dangerous for a person who was either standing or sitting on the edge of a freight car, as it passed under the braces. We can not but presume that the railroad knew how its own bridges are constructed, as to height and safety in this respect. It would be negligence after a reasonable time not to know. We think the evidence perfectly clear that deceased was sitting or standing on the side of the car when he was struck. It was in broad day light. He had been passing over this- road in day light every day according to plaintiff’s evidence, and not less than three or four times a week according to other evidence, for months. He was nineteen years old. The proof shows that no duty of his, called him to either side of the freight car, but that he was riding on the side or edge for his own comfort and convenience, not in the discharge of any duty, and that his proper position was at the brakes, or center board. These facts are undisputed, and to our mind present a clear case of contributory negligence. The record is silent as to whether the deceased had been warned as to this particular bridge, but so far as regards defendant, it was safe, according to the evidence, if he exercised ordinary observation and care when passing under it. Railroads are held strictly to a proper discharge of their duties, but the law does not require, that they shall anticipate and provide against the negligence of their employes. The case probably would be different, if the facts did not show that deceased was familiar with the location of the bridge and its construction. As we have said, the accident occured in broad day light, and deceased had passed under the bridge more than fifty times in day light, within a period of four months preceding the accident in the discharge of the duties of brakeman. He was certainly chargeable with such knowledge. The case would also possibly be different, if in the discharge of his duties he had been called to occupy a dangerous place on the car. He assumed it voluntarily and knowingly. In this summary of the evidence we have left out of view, the uncontradicted testimony tending to show that just before reaching the bridge he had been seen on the edge asleep, and was warned by the conductor of the danger of sleeping in such a position. 1'f he was not asleep, but from “inadvertence, forgetfulness, inattention or absentmindedness,” voluntarily assumed a position obviously dangerous, without any necessity for it but as a place of comfort and convenience, and from this cause was injured, he would have been guilty of contributory negligence.—Hall’s case, supra. Custom can not excuse such negligence. The principle of law which requires employers to instruct their minor or unskilled employes as to the dangers attending the performance of their duties or in the use of dangerous machinery, does not arise in this case. There is no such negligence counted on in the complaint, and there is no proof that the accident arose from such neglect of duty, if there was such neglect. The charge requested on this question was abstract.

The plaintiff moved for a new trial, upon the ground of newly discovered evidence. The motion was properly overruled for the reason that the newly discovered evidence if before the jury ought not to have changed the verdict. There is no evidence of wanton or wilful misconduct on the part of the defendant in the construction of the bridge, such as would make defendant liable, notwithstanding the contributory negligence of the plaintiff, and the newly discovered evidence would not have established such a contention. There could have been no other purpose for introducing it.

We find no error in the record available to plaintiff.

Affirmed.