Western Railway v. Williamson , 114 Ala. 131 ( 1896 )

HARALSON, J. —

The bill of exceptions, as shown by the abstract, does not purport to set out all the evidence. It is contended by appellee, that the abstract also fails to show that exceptions were reserved to any of the rulings of "the 'court assigned as error. But, after setting out in the abstract each ruling, and the objections that had been interposed," and setting these out only in the assignments of error,the abstract concludes: “Proper exceptions were reserved to each and all the foregoing assignments of error.” This method of stating exceptions to be here passed on, is subject to criticism. It is far better to set out in the abstract the rulings with objections that had been interposed, and the exceptions reserved thereto, just as they appear in the bill of exceptions . It will be less confusing and save the consideration, often, of unnecessary and perplexing questions, to do so. We apprehend that what purports to be a reservation of exceptions to rulings in this case, ought, under the conditions before us, to be held sufficient. We have heretofore so ruled from the bench.

1. The first assignment of error as to the rulings of the court on demurrers tó the complaint cannot be sustained. Each count seems to present a good cause of action.

2. The second assignment is, “In sustaining plaintiff’s objection to question asked witness, Shafer, by defendant, as follows : 'How are automatic couplers regarded by railroad men as to their fitness for the purposes intended, and their safety for the employes?’ ” That such a witness as Shafer, was examined by defendant, appears alone from the assignment of error as above copied, and from nothing in the abstract of the evidence. At what time and in what connection he was examined, who he was and in what business engaged, and the purpose of the question jnopounded, do not satisfactorily appear. We are, therefore, without information sufficient to pass intelligently on the ruling of the court in sustaining an objection tó the question.

3. The same thing may be said of the second and third questions propounded to said witness, rulings on which constitute assignments of errors 3 and 4.

It is unnecessary to review the 5th, 6th, 7th'and 8th assignments, further than to say, that there is such confusion in the statement of the rulings, about the witnesses and in what connection they were examined, there being nothing concerning them in the bill of exceptions, as shown by the abstract, we are unable to give the exceptions intelligent consideration.

4. Before passing on the other assignments of error, having reference to charges of the court, such as -we deem it important to notice, it is proper to refer to the evidence in the cause, as briefly as may be. It shows that plaintiff was engaged as a bralternan on defendant’s railroad, and had been thus engaged about two years, and prior to that' time, he had had five or six years’ experience in handling trains on other railroads. The injury for which he sues, occurred at Sistrunk & Jordan!’s saw-mill, situated about one-fourth of a mile from defendant’s main line, and connected therewith by a branch track. Prom this mill, defendant was accustomed to haul lumber, stored in sheds on each side of and covering the track, at a point where the track was elevated, some six or twelve feet above the ground, according to varying estimates, and was there level; that to reach this elevated track, it was necessary to ascend an incline, in length, from the end of the switch to the top, from 60 to 120 feet, as estimated by different witnesses ; that there were two or three loaded cars standing on this elevated track under the shed, to be coupled and brought down to the train below; that for this purpose the switch was turned, — as the plaintiff testified, by him, and as testified by another bralceman, by himself, — to let in the engine with one or two cars attached, to back up for those standing on the elevation. The plaintiff’s testimony was, that after the switch was turned, he signalled the engineer to back up, and obeying the signal, the engineer did so, following the plaintiff,' who walked ahead of the engine and cars ; that the distance from the end of the car on the elevated track, to the top of the incline was about two car lengths, and that it was 'about forty feet from the bottom to the top of the incline ; that after plaintiff reached the top of the incline, and while under the shed, he could not see the engineer nor could the engineer see him ; that it was customary for the conductor to stand so as to see the brakeman doing the work and the engineer ; that after reaching the top of the incline, and when the cars were being backed, he was standing near the incline, some 10 or 12 feet from the car to be coupled, and tried to give the stop-signal to the engineer, whom he did not see, but who plaintiff supposed ought to see him ; that he did not see the conductor, and did not know where he was until after the injury; that it was the conductor’s- duty to look out for the men doing the work at that place, especially, because they cannot see the engineer nor the -engineer see them ; that after giving this signal, plaintiff went in between the rails to examine the coupler, without waiting to see if the signal had been observed; that the engine and cars backed rapidly and struck the ones to be coupled with such force as to cause them to roll back some 10 or 12 feet; that the coupler of each car was out of order, the one attached to the engine was half open and would not work ; that the plaintiff had attempted to open it but it would not open, and that the defect in the one on the elevation to be coupled was, that the lugs to hold the knuckles together were not proper ones.

The evidence also tended to show, that the couplers on each car were automatic, which, if in order, would couple themselves when brought together with sufficient force, without the use of any one’s hand.

The evidence for defendant tended to show, that the couplers were in good order ; that the conductor was in proper place, — about the edge of the incline, — to receive from the plaintiff his signals and to transmit them to the engineer ; that he immediately transmitted all signals given by plaintiff, and they were promptly obeyed ; that the rate of speed at which the engine and cars ascended the incline, was the usual and customary speed at that place, and not as fast as a man could walk. The engineer testified, that when he got the signal to. stop, he heard some one halloo, looked out and saw plaintiff come out with his hand injured; that the signals of the conductor, before the one to stop, were to move up gradually, slowly; that plaintiff gave the signal to stop when the moving cars got right near to him, the cars to be coupled being, in the opinion of the conductor, 5 or 6 feet apart when plaintiff gave the signal, which was immediately repeated to and promptly' obeyed by the engineer, and plaintiff went in between the cars, about the time he gave the signal.

The rules of the company were introduced in evidence, requiring all employes, “ not only to attend to and obey all signals and instructions, but also that they should, upon all occasions, be vigilant and cautious themselves, not trusting alone to signals or rules of safety;” that “ all persons entering or remaining in the service of the company, are warned that in accepting or retaining employment they must assume the ordinary risks attending it. Each employe is expected and required to look after and be responsible for his own safety, as well as to exercise the utmost caution to avoid injury to his fellows, especially in the switching of cars, and in the movement of trains;” that “stepping in front of approaching engines, * * * getting in between cars while in motion to uncouple them, and all similar imprudences are dangerous and in violation of duty ;” that ‘ employes of every grade are warned to see for themselves, before using them, that the machinery and tools which they are expected to use are in proper condition for the service required, and to put them in proper condition, or to see that they are so put, before using them. The company does not wish or expect its employes to incur any risks whatever from which, by exercise of their own judgment and by personal care, they can protect themselves, but enjoins them to take time in all cases to do their duty in safety, whether they may, at the time, be acting under orders of their superiors, or otherwise ;” that “ coupling cars by hand is strictly prohibited. Any violation of this rule will be severely dealt with,” &c.; that “great care must be exercised by all persons when coupling cars. The coupling apparatus of cars and engines is not always uniform in size, style and strength, and is liable to be broken ; it is, therefore, dangerous to expose the hands, arms, or persons of those engaged in coupling cars. All employes are hereby instructed, each for himself, to examine so as to know the kind and condition of the drawheads, drawbars, and coupling apparatus, and are prohibited from placing in a train, a car with a defective coupling until they have first reported its defective condition to the yardmaster, conductor or proper person in authority. Sufficient time is allowed, and must be taken by employes in all cases to make examinations.” The bool?; containing these rules, the evidence tended to show, had been delivered to plaintiff, and he was acquainted with said rules.

4. There was no error in that part of the general charge excepted to, made the basis of assignment of error 9. The case was tried on the plea of general issue, ' and of contributory negligence on the part of the plaintiff. .The burden is always with plaintiff under the general issue, to make out a prima facie case of negligence against the defendant, by proving that the company was guilty of some negligence, the proximate effect of which was injury to him. When this is shown, the burden is on the defendant to overcome it, and when the defense of contributory negligence is relied on, as well, the onus is on the defendant to establish it. — B. U. R. Co. v. Hale, 90 Ala. 8; Bromley v. Bir. Min. Railroad Co., 95 Ala. 403 ; K. C., M. & B. Railroad Co.v. Crocker, 95 Ala. 428 ; McDonald v. Montgomery St. Railway, 110 Ala. 161.

5. Those parts of the general charge of the court excepted to, the bases of assignments of error 10 and 11, should not have been given. They are not clear, but obscure, and tend to confuse and mislead. It cannot be clearly determined whether the word, “observed,” as therein employed, means “seen” or “obeyed.” But, whether construed to mean the one or the other, the plaintiff’s own evidence tends to show, that without waiting to see if the signal he said he gave the engineer to stop was obeyed or not, he went right in between the cars, in front of the moving engine and cars behind him, and attempted to adjust the coupler, and was injured. The charges lay down too low a degree of caution to be observed by a brakeman in going in between moving cars, to make a coupling, especially in view of the rules of the company in evidence.

6. Charge No. 1 requested by defendant was properly refused. When the bill of exceptions does not purport to set out all the evidence, we can not affirm that the lower court erred in refusing to give the general charge. Hudson v. Bauer Grocery Co., 105 Ala. 201; Wadsworth v. Williams, 101 Ala. 265.

There was no error in refusing charge No. 2. It is abstract. There is no evidence that plaintiff failed to make examination of the drawheacls and coupling apparatus when the engine was at a standstill, and the cause of injury hypothesized is too remote.

There are 17 other charges asked by defendant and refused. The appellant’s counsel has not deemed it important to discuss them. We decline to do so, without intimation as to whether we deem them erroneous or not.

For the errors indicated, the judgment below is reversed and the cause remanded.

Reversed and remanded.