Louisville & Nashville Railroad v. Baker , 106 Ala. 624 ( 1894 )

MoCLELLAN, J.

— The only exception reserved to the trial court’s rulings on evidence which is insisted upon in the brief of appellant’s counsel went to the court’s refusal to exclude the testimony of the witness Taylor with reference to the defects of a car brought to the shop where he was employed, immediately after the injury to the plaintiff, from the direction of the place where the injury occurred, upon the ground that his testimony did not identify this car as being the one which injured the plaintiff. It will suffice to say that the evidence of Taylor when taken in connection with the evidence of other witnesses tended to show that the car which came to him was the car which the plaintiff was endeavoring to uncouple at Iskooda when he received the injury complained of. The character of the car, the direction from •which it came and the nature of the defects to remedy which it was brought to the shop go to show that it was the same car, were facts in evidence affording some ground for the jury to so infer, and the probative force of these facts was properly left to the jury.

The second charge given for the plaintiff states the law as declared by the statute itself and by the decisions of this court, i. e., that the employé may recover for injuries resulting from defects in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer, unless he knew of the defect and failed in a reasonable time to give notice of it. Until he has such knowledge, he has a right to presume there are no defects. — Code, § 2590 ; Ga. Pa. R. R. Co. v. Davis, 92 Ala. 309 ; L. & N. R. R. Co. v. Orr, 91 Ala. 554 ; L. & N. R. R. Co. v. Hawkins, 92 Ala. 241.

The question in the case of the Alabama Great Southern R. R. Co. v. Richie, 99 Ala. 346, was whether there was' any evidence tending to show that the engineer wantonly or willfully inflicted the injury upon Richie, the plaintiff. There is no such question in the case at bar, and we are unable to see how that case can have any bearing on this to the favor of the appellant, especially as we there found the engineer guilty of simple negligence, which is all that is charged against the engineer here. We feel, therefore, safe in saying that the first and second charges requested by the defendant can derive no support from anything that was said or decided in that case. And considering them upon principle and authority, we are clear to the conclusion that they were properly refused. If any signal was given the engineer in this case to move his engine while the plaintiff was attempting to uncouple two cars attached to the enginé, it was not given by the plaintiff; and there is no evidence that the signal so given was the proper signal to be given, nor is its propriety hypothesized in these charges. Richie’s Case, 99 Ala. 346, supra, is an authority against the correctness of charges 1 and 2 on this state of evidence and in this form ; and the infirmity of the charges stands out in bolder relief when referred to the evidence of the plaintiff to the effect that before going between the cars he gave the engineer a signal to stand still, ‘ ‘and went right in; that at the time he gave the signal the engine was fronting him and he could see the engineer and the latter was looking at him,” while Gallagher, who it is claimed gave the engineer the signal soon after to "give slack,” was behind the engine in the caboose. If this testimony presents the case truly — and the jury had a right to so find — we should unhesitatingly say that any signal to move the train not made or authorized by Baker, the plaintiff, would be an improper and negligent signal, and that the engineer was negligent in obeying any such signal not so made or authorized, knowing as he did that Baker was between the cars trying to uncouple them with a right to assume that they would not be moved while he was thus engaged. If Baker himself had given the signal for slack (as did Richie in the case referred to above), and the engineer in obedience to the signal had "moved his engine in a proper and usual way to give the plaintiff slack,” (as Richie’s engineer did not), he, of course, would not have been guilty of negligence ; but this is not the case hypothesized in the charges by any manner of means. And charge 4 was well refused upon the same considerations.

Charge 3 requested by the defendant was an invasion of the province of the jury. There was evidence going to show that the alleged defects of the car could have been discovered by a certain mode of inspection which defendant’s inspectors did not adopt. They testified to facts, it may be conceded, which if true showed that their inspection was careful and such as was made upon certain other well regulated railroads. But the court could not assume that the jury would believe them or take away from the jury the right to pass upon the credibility of their evidence, as the giving of this charge would have done.

With Taylor’s testimony in the case, there was evidence upon which the jury might have concluded that the defects of defendant’s car laid in the 4th count .of the complaint arose from or had not been remedied owing to negligence for which defendant was responsible, and that there was a proximate causal connection between the defects and the injury. Manifestly, therefore, the general charge for defendant on the 4th count was properly refused. Nor was it necessary for the jury to find how long the defects had existed: they may have justly inferred from the evidence that they had existed a sufficient length of time for their continuance to be due to defendant’s negligence, without being at all able to say what oeriod of time had elapsed from the date at which they arose to the date of the injury. Charge'7 was, therefore, bad.

Charge 8 predicates a conclusion upon the belief of the jury that the plaintiff was. injured in consequence of his facing the engine while between the cars, of which there is no evidence. The charge is abstract.

, ■ Charge 9 was asked upon the assmnption that Taylor’s evidence was improperly in the case, and hence that there was no evidence tending to show that the defects existed at the time of the inspection. These assumptions not being well taken, the charge was properly refused.

Affirmed.