Louisville & Nashville Railroad v. Mothershed , 110 Ala. 143 ( 1895 )

HEAD, J.

The sixth count of the complaint identifies the person alleged to have been gulity of the negligence causing the injury as the person in charge of the particular freight train which had been stopped on the track, at the specified time and place, and with which intestate’s train collided; We deem it unnecessary to decide whether or not this is a sufficient identification of the person charged with the negligence. See Railroad Co. v. George, 94 Ala. 214. The amendment of the second plea, after demurrer sustained, by which the words, “known to plaintiff’s intestate,” were inserted, was necessary to make the plea good; and the demurrer to the plea, as the latter was originally filed, was properly sustained. By the ruling of the court on demurrer, the defendant was required to amend its third plea by inserting the word “negligently” where the same occurs in the plea as copied in the transcript; and to amend its fourth plea by inserting the words, “and negli-. gently violated said rule as hereinafter set forth, ” where those words appear in said plea, as copied. These pleas set up, in terms, a rule of the defendant known to plaintiff’s intestate, in force at and before the injury, and applicable to the place of the injury, which was a water station, and to the train of which plaintiff’s- intestate was engineer, at the time he was killed by the collision of that train with another, by which rule it was required that such trains must approach such stations “under control, expecting to find the main track occupied.” Tlie violation of this rule by the plaintiff’s intestate, as engineer of the moving train, proximately contributing to his death, is alleged. The demurrer takes the position, and it is supported here by earnest argument by counsel for appellee, that the mere violation of the rule, proximately contributing to the injury, was, without more, insufficient to render the engineer culpable, in such sense as to affect his personal representative’s action for the defendant’s negligence causing the injury ; that the failure to observe the rule must have been either an expressly willful default, exerted without regard to the danger intended by the rule to be provided against, or that the promulgation of the rule invested the engineer with a reasonable discretion in respect of its observance, tobe exercised as an ordinarily prudent person would have done under the circumstances ; and that it was, therefore, necessary that the pleader should not stop with the allegation merely that the rule was not observed, thereby contributing to the injury, but should have gone further, and alleged that the omission was willful or negligent, within the principle contended for. The trial court accepted this view, and, by the effect of its ruling upon the demurrer, required the defendant to make the amendments to which we have referred. It may be, and probably will be, said that if the original pleas showed a failure of duty on the part of the engineer, the characterization of that failure as “negligent” added nothing to the allegation; but it is manifest, from the manner in which the _ question was presented, that the amendments were regarded by appel-lee’s counsel and the court as imposing upon the defendant the necessity of a further measure of proof, in line with the principle contended for, than did the mere allegation of non-observance of the rule,. and that view seemed to have pervaded the subsequent proceedings in the cause. We may as well, therefore, dispose of the question here, by consideration of the ruling upon the demurrer, as elsewhere.

That the rule, as set up in the pleas, is a just and reasonable one, no one will, for a moment, gainsay. The end and obvious tendency of.its promulgation and enforcement was the all-important one of avoiding great peril of life and property. The highest considerations of duty to its employes, the general public, and itself, impelled the defendant to its adoption. Being promulgated, and no unforeseen emergency arising which would render obedience to it in a given case impracticable or disastrous, all discretion as to the necessity of obedience was exhausted. The engineer having the means of observance, the rule was mandatory upon him. He had no right to inquire whether the surroundings seemed to render obedience necessary. It matters not, therefore, whether his disobedience was expressly willful, or inadvertent, or resulted from a reasonable belief, in his mind, that in the given instance obedience was unnecessary. He was equally culpable in either event. It is known that the engineer, with the aid of brakemen, has the mechanical control of the train's movement. As the rule appears in the pleas, it binds him. His failure to conform to it is prima facie wrong. If any accident, dereliction of brakemen or other trainmen, or other cause intervenes to prevent conformity, such cause is special matter of excuse or justification, and must be alleged and proved by him who may rely upon it.. This is a principle universally accepted in the common law. If, for instance, a person who fills the office of sheriff seizes and sells the goods of another, he is prima facie a trespasser, though it is known that he may justify under legal process. The seizure under regular process is special matter of defense, and must be so pleaded. If one assaults another, it is prima facie wrongful, though it may be justified by special matter of self-defense, which, in civil actions, must be specially pleaded. These and many other instances illustrate the principle. If, therefore, the engineer’s failure to observe the rule was excusable for any cause, it was special matter, to be set up by replication to the pleas. It was not upon the defendant to allege or prove more than the failure to observe the rule, known to the party charged, proximately contributing to the injury. The fifth plea set up the same rule, and its application to the time, place, train in question, and further alleged, in substance, that the same, with other rules, was printed in a printed time-card of the defendant which went into effect on May 10, 1891, at 3 o’clock p. m., and that, on May 9, 1891, plaintiff’s intestate received one of said cards, and signed a receipt and agreement, by which he acknowledged receipt of the same and agreed to read the rules and regulations contained in the same, to post himself fully as to their requirements, and to be governed by the same during the time of his continuance in the employ of said company, as long as the same should be in force; that, at the time of the injury, which, the complaint shows, occurred on May 18, 1891, the defendant was operating its railroad under said time-card. The plea regularly alleged violation of this rule proximately contributing to the injury. By a similar ruling on demurrer, the defendant was also required to qualify the violation by the’ insertion of the word “negligently”; and what we said in reference to the other pleas is applicable here on that point.

To these pleas (2, 3, 4 and 5) plaintiff filed replications numered 1, 2, 3; and 4. The third and fourth went out of the case on demurrer. After demurrer overruled to the first and second, issue was joined on them. The first set up that defendant habitually permitted said rule to be violated, and did not require the observance of said rule by its employés in the running of defendant’s trains at Phelan Station, where the injuries occurred; the second, that said rule was addressed to and was obligatory upon defendant’s conductors only, and was not addressed to or obligatory upon defendant’s engineers in charge of its engines. There was no general replication to the pleas, and. the cause was tried alone, as far as the pleadings show, upon the issues tendered by these two replications. Their sufficiency was first challenged by demurrer, complaining, substantially, that the first failed to state the facts which manifested the defendant’s permission of the violation of the rule ; that it does not appear that such permissive violation existed prior to the injury, nor that it existed between the 10th and 18th days of May, 1891; that it does not appear that such permissive violation extended to the plaintiff’s intestate ; that it does not appear that defendant released the intestate from the agreement set up in the fifth plea, and did not require its observance by intestate after the agreement was entered into ; that said replication is no more than a traverse ; that, as to the second replication, the fifth plea requires a sworn denial of the execution of the agreement set up therein, and there is no such denial; that the fact that the rule was not addressed to the engineers does not show it was not binding upon them ; that the averment that the rule was not obligatory upon the engineers is the statement of a conclusion, and not of fact; and that there are no facts in avoidance set up. It is apparent, we think, that neither of the replications comes up to the demands of good pleading. Each is a limited traverse, confessing all other allegations. It is not a general traverse, nor a confession and avoidance by new matter. Pleas in bar, or replications thereto, must be one or the other of these latter. The first replication confesses that the rule set up in the pleas was promulgated, that it applied to engineers, that it was known to and not observed by the intestate, and that its non-observance proximately contributed to the injury. It further confesses that the intestate received the time-card with the rule thereon printed, and entered into the written agreement, as set up in the fifth plea, on May 9, 1891, binding himself to read, post himself as to, and be governed by, the rule ; and that the injury occurred on the 18th day of May thereafter, to which his failure to observe the rule proximately contributed. It seeks to avoid the allegations so confessed, not by an averment of new. matter, but, in substance, by the traverse of the -allegation that the rule was in force at the place of injury; the replication being, in effect, that the rule was discontinued by the fact that, at some undefined time, the defendant habitually permitted it to be there violated, and. did not require its observance by its employés in the running of trains there. The second replication confesses all the allegations of the pleas to which we have referred, except that the rule was obligatory upon the engineers, which .it traverses by stating, by way of fact, that the rule was not addressed to, and, by way of conclusion, that it was not obligatory upon, defendant’s engineers, in charge of its engines. All that is sought to be set up by these replications, as answers to the pleas, could have been proven under a general replication. They present no matter for special reply. But, if it be not legally objectionable to plead a traverse in special form, and that form is resorted to, the facts must be stated with such definiteness and certainty as to show, legally, the untruth or non-existence of the material fact or facts intended to be denied. A statement of conclusions merely is not sufficient.

The question which appears to us, however, as most important, and, viewed in connection with the evidence, as conclusive of the cause, is, what effect is to be attributed to the agreement set up in the fifth plea? By way of preliminary consideration, we remark, as we have before stated, that it is judicially known that the engineer, with the aid of brakemen, whom he must signal to his service, has the mechanical control of the train’s movement. He alone, with such aid, it may be, can keep the train under control, within the meaning of the rule. It is he, more especially, whom the rule warns tó expect the track to be occupied at such places. If a passenger or other person were suing for an injury alleged to have been caused by the failure of the engineer to observe this rule, we apprehend no court or jury would hesitate to declare, upon the face of the rule itself, that it was intended for the government of the engineer. T.n addition to this, another of the printed rules, in'pari materia, with the one in question, as shown by the evidence, provided that “conductors and engine-men will be held equally responsible for the violation of any of the rules governing the safety of their trains ; and they must take every p7'ecaution for the protection of their trains, even if not provided for by the rules.” The defendant also introduced another rule of similar import, and the evidence in the case is to the saíne effect. There is nothing in rule 183, introduced by plaintiff, in conflict with those under consideration. It provides that the “general direction and government of the train * * * is vested in the conductor. He is held responsible for its safe and proper conduct, and all men employed on the train are required to yield a willing obedience to his proper orders.” There is not the slightest conflict in these rules, nor the shadow of reason for declaring that the duty of the engineer to keep the train under control when approaching the station in question was in any wise impaired. It might as well be argued that the conductor only is responsible for the failure of the engineer to sound the whistle for a station or road crossing, or to sound the cattle alarm when stock are upon the track, or to perform any other of the duties which peculiarly appertain to his position, as to contend that the conductor is alone responsible for the engineer’s failure to keep his train under control ata particular place. If, by reason of particular facts, the conductor was alone responsible, to the entire exculpation of the engineer, it was upon the plaintiff to allege and prove the facts; and in that regard it is observable that the engineer is required to obey only the proper orders of the conductor. With no pending emergency, rendering unusual and independent action imperative, it is not perceivable how a conductor could properly command the violation of a known, important rule of the company, or how an engineer would be required to obey it. Tho inquiry, then, is whether there was evidence tending to show that the rule which the plaintiff’s intestate agreed to observe was not in force at the time of the injury. The defendant’s evidence is all to the effect that the rule was in full force at that time and required to be observed. The plaintiff introduced evidence tending to show that, for a period of a year or two prior to the accident, up to the time of the accident, about one-half of the freight trains passed Phelan station without stopping ; .that they would run through about like they would on any other part of the road — about 25 or 30 miles per hour. The testimony of the defendant’s officers who were authorized to act in the matter went to show that they never authorized or sanctioned the violation of the rules by the engineers; and there was no conflict in this 'evidence, unless it be that there was testimony tending. to show that they had the means of detecting the rate of speed of any train at any place on the road-

But, proceeding to the agreement in question, this court has heretofore settled the law,quite clearly on this subject. In Railroad Co. v. Hissong, 97 Ala. 187, we had under consideration a rule which prohibited car-couplers to go between cars to couple them, a violation of which was alleged against the plaintiff as contributory negligence. The plaintiff’s effort was to avoid the effect of the violation by showing a long-continued custom of defendant’s employes to violate the rule, under certain circumstances, and to establish the inference therefrom of defendant’s acquiescence in such violations, and a waiver of the observance of the rule. The plaintiff, a very short time before the injury, had entered into a written agreement with the defendant binding himself to observe the rule. This court, by Justice HaralsoN, discussed the question fully, and concluded its opinion with the following language : ‘ ‘If rule 20 by long non-observance had gone into disuse, and was a regulation of the company by name only, and no longer binding, we know of no law which, notwithstanding, prevented the parties from making it the basis of their contract for plaintiff’s service, and if bona fide entered into, how proof of any custom theretofore existing to the contrary might set aside and annul the deliberate engagements of the parties. Surely, this would be making their contract for them, and denying them the privilege. We must hold, therefore, that when a contract of the kind we are construing has been entered into between the parties, no proof of custom can be made to the contrary of its stipulations, to vary its binding force, and. that it must be held binding between the parties, unless it be shown, by their acts and conduct, they have mutually altered and rescinded it.—3 Brick. Dig. 152, § 146; Warden v. Railroad Co., 94 Ala. 285. Our ruling in this case, on the former appeal, on the admissibility of evidence of custom theretofore'between the defendant and other employés, to show' a waiver by the defendant of its contract with the plaintiff, must be modified in accordance with the principle herein announced. The court erred in allowing the witness to testify as to such custom and practice.” The undisputed evidence shows that the rule now in question was republished and again promulgated on the 9th day of May, 1891, to take effect the following day; that plaintiff’s intestate on that day receipted in writing for a copy of it,-and agreed in writing with the defendant to observe it so long as he should remain in the defendant’s service, or the rule should be continued in force. The injury occurred on the 18th of the same month — a period of nine days after the republication and agreement. There was no evidence from which it could be inferred, during that period, at least, if it were conceded that there was such evidence as to the time anterior, that the defendant rescinded, altered, abrogated, or waived the rule. If, during that period, the reading of the indicators showed undue speed of any train approaching the station, there was no proof of it; and, moreover, the indicator reports are made to the superintendent monthly, and there is a total want of evidence that a report was made from May 9th to 18th. To establish the abrogation of a plain,- important rule like this, which the employe has solemnly agreed in writing to observe, by silent acquiescence in its violation on the part of the officers authorized to act, it should be shown clearly that the violations had been of such frequent and long continued occurrence, known to such officers, and acquiesced in by them, as to raise clearly the just presumption that such officers had assented to the disuse of the rule. There is absolutely no evidence to bring this case within this principle, if, indeed, it be not inconceivable how, in a system of such proportions as the operation of a railroad from Decatur to Montgomery, such a presumption from acquiescence can arise within so brief a period as nine days. There is no reason for a supposition that the rule was adopted as a sham or mere pretense, as suggested. It is manifest, as we have said, that it is one of great importance. The plaintiff’s intestate lost his life by his failure to observe it — a life which would have been saved by its simple observance.

If it be conceded that a special replication, setting up matter of excuse for the failure to comply with the rule, was waived by the course the trial took, there was no evidence whatever of such an excuse. There is no evidence whatever of an effort on the part o'f the engineer to keep the train under control, nor of the failure of any brakeman or other trainman to respond to any call made by him for brakes or other assistance. The fact that brakemen were not at the brakes as the train approached Phelan is no evidence of action on the par.t of the engineer calling them to their places. It rather- implies, if anything, non-action on his part in that regard. We can find in the record no evidence indicating in the slightest degree a legal excuse for not complying with the rule. That the conductor of the train standing at Phelan was guilty of culpable negligence goes without saying, under the evidence adduced ; but, as the case now comes before us, the contributory negligence of the intestate bars recovery by the plaintiff. The general affirmative charge should have been given for the defendant. We deem it unnecessary to pass upon the several assignments of error.

Reversed and remanded.