Alabama Great Southern Railroad v. Brooks , 135 Ala. 401 ( 1902 )

HARALSON, J.

The court gave the affirmative charge for defendant as to each of the counts except the first, second, third and sixth.

1. That the demurrers to these counts were properly overruled we need not discuss after our repeated decisions sustaining counts of a similar character.—B. C. M. Co. v. Parker, 134 Ala. 293; 32 So. Rep. 700; Robinson M. Co. v. Tolbert, 132 Ala. 462; 31 So. Rep. 519; L. & N. R. R. Co. v. Jones, 130 Ala. 456; B. & L. Asso. v. Campbell, 121 Ala. 50; Southern Railway Co. v. Arnold, 114 Ala. 183; and the other cases referred to in these decisions.

2. The fifth plea sets up; that plaintiff’s intestate “voluntarily and unnecessarily Avent in between two cars on the track of defendant, when he knew, or by reasonable diligence could have known, that a car or cars Avere approaching the ones between which he. went, and that they [would] probably collide, and that thereby he assumed the risk of being injured when the cars came together.”

Tin demurrers to the plea Avere, (1) that it assumes that there Avas obvious danger for plaintiff’s intestate to go between the cars; (2) that the plea does not show or aver that going in between the cars, was obviously dangerous; (3) because the averment that plaintiff’s intestate assumed an obvious danger is merely the conclusion of the pleader, and (41 that the said plea does not aver or show that plaintiff’s intestate knew that the approaching cars were coming with force and would probably strike the cars between which plaintiff’s intestate was, and that in striking said cars [they] would probably injure plaintiff’s intestate.

The plea is not bad because, in terms, it did not state that the. danger incurred by plaintiff’s intestate was obvious, 'if the facts stated show that it was obvious. Facts set up to show danger, may be and are stronger to show it,- than the mere statement of the conclusion of the pleader without facts, that it exists and is oU vious.—Ala. G. & R. Co. v. Roach, 110 Ala. 267.

We all know that a car may be propelled by an,- engine, to malee a coupling with another one standing on the -trade'ahead of it, at-such a rate o.f speed as to show at a glance to any sensible person,' that it would be dangerous to go in between the approaching car and the one standing,- to couple them when they come together. There is not only danger in so doing, buff, it may be instantly apprehended. But it is equally a matter of common knowledge, that in such case, the moving car may be propelled so slowly and cautiously, as not to suggest the idea of danger attending its coupling with the standing car. They often come together without jar, or danger to one between' them. The plea, here, assumes that there was danger'in making the coupling' by intestate. The averment that deceased “knew or by reasonable diligence could have known that a car or cars were approaching the ones between which he went and that they would probably collide,” falls short of an averment of any fact to show danger in making the coupling and that it -was obvious, and on this account was subject to the demurrer to it.—Bailey on Master and Servant, 142; L. & N. R. R. Co. v. Banks, 104 Ala. 508; Davis v. Railroad, 107 Ala. 626; S. R. Co. v. Arnold, 114 Ala. 189 ; A. G. S. R. Co. v. Roach, supra. Furthermore, the plea is not one of contributory negligence.' It sets up merely 'that- the intestate -assumed -a risk incident to hiS'employment and fails to answer the charge off negligence'made in the 'complaint; for the law is, that an employe by entering upon the performance of his duties, whatever may be the danger incident thereto, does not assume a risk created by the employer’s negligence.

3. Webb, the flagman, on his cross by plaintiff was asked: I)id you not state in the presence of Mr. Park and to Mr. Park, and in the presence of the deceased and Mr. Harkness and' Dr. Peed and Dr. Shaw, at the drug store, while. Mr. Brooks was there, after he was injured that night, — did you not state to the conductor in substance this, — ‘No, he was not coupling the cars; I had already coupled them, but he was coupling the air as. you liad directed or ordered him to do?’ ” This Avas objected to “on tlie ground that the declaration of an agent subsequent to the happening of the accident Avas incompetent, Avhioh objection the court, overruled, stating that it ivas not competent as to that, but that it tended to contradict the statement of the Avitness, and that it Avas admitted solely for the purpose’ of impeaching the Avitness.”

The AAitness had just stated, in his direct examination, that the conductor, aaíio Avas Mr. Park, had instructed deceased to couple the air brakes, after they left, there; “that he heard the conductor tell deceased that, right, there someAvhere near the caboose, 3, 4 or 5 minutes before the accident.” The question propounded Avas competent for the purposes to AA'hieh it Avas limited by the court.

4. The plaintiff asked the conductor, on his cross-examination: “Didn’t he [the deceased] say to you [on the occasion and at the. place referred to in the foregoing exception], that he Aims not trying to make the coupling, but Avas trying to attach the air, Avhich you had ordered him to do, at the. time he was hurt, and Avere not you silent when that Avas said?” The Avitness had stated in his direct examination, that he' had not ordered him to go in betAveen the cars at the time he Avas hurt., and that AAdien he. Aveut in between them, he went voluntarily. The question Avas not subject to objection. It Avas competent to discredit the Avitness by sboAving contradictory statements, and his silence, AAdien the deceased said to him AAdiat the question assumed he did say, tended to show he admitted 'what deceased charged him with. The same thing applies to similar questions propounded to Dr. Shaw and to W. B. Harkness, as to the silence of Park on that occasion when told by deceased that he had ordered him to go in between the cars.

Objection to the question to the conductor, Park, the basis of assignment of error 14, was properly sustained. The question sought to sIioav by the witness, that it was one of his duties, as soon as an accident happens to telegraph at once the number and initials of the cars, where the accident occurred. Showing this to he one of his duties, without more, did not prove or tend to prove, if that were important, that he performed that duty.

5. The only refused charges assigned as error are the ones numbered 1, 2, 3, 4 and 7, .the first being the general charge for defendant, and the others, like charges, on the 1st, 2d, 3d and 6th counts of the complaint.

The evidence was in conflict on all the material questions in the case, such as whether the deceased went between the cars voluntarily, or by the instructions of the conductor, Park, the rate of speed at which the cars were being shoved hack by the engine which collided with those the deceased went between, and whether the engineer, Clements, was guilty of negligence or not, and these questions were properly left for the determination of the jury. Neither of said charges could prop-erlv have been given.

The motion for a new trial fails to impress us that the court erred in overruling it.

Affirmed.