Southern Railway Co. v. Witt , 186 Ala. 178 ( 1914 )

ANDERSON, C. J. —

The third count of the complaint conforms to subdivision 5 of section 3910 of the Code of 1907, and was not subject to the defendant’s demurrer.—Woodward Co. v. Herndon, 114 Ala. 191, 21 South. 430; A. G. S. R. R. Co. v. Brock, 161 Ala. 351, 49 South. 453.

The plaintiff’s evidence tended to show that the engineer caused the engine to come.back against the car, upon which he was fixing the drawhead preparatory to the coupling, without a signal, and that it was the duty of said engineer not to' come back until the plaintiff signalled him to do so. The jury could also infer from the plaintiff’s evidence that when the ' plaintiff was on the drawhead his car was stationary and that the engine end of the train was either standing or was going from him, and that he did not therefore go between moving cars in violation of the rule or that his conduct was the proximate cause of his injury. The negligence of the engineer as well as the proximate contributory negligence of the plaintiff were questions for the jury, and there was no error in refusing the general charge requested by the defendant as to count 3, which was the only one that went to the jury. Nor are we prepared to say that the verdict of the jury was so plainly and palpably contrary to the great weight of the evidence as to warrant this court in reversing the trial court for refusing a new trial.—Cobb v. Malone, 92 Ala. 630, 9 South. 738. We do not think that the appellant has shoivn proper diligence as to the newly discovered evidence. Dr. Wallace treated the plaintiff and was paid by the defendant and it had every opportunity to find out if Wallace knew of any facts beneficial to its case. Moreover, the statement of the plaintiff, to inquiries of the accident company as to the cause of his injury, is not necessarily in conflict with his evidence upon the trial; his foot may have slipped and caused the injury, and yet he may have been injured as he stated in his testimony. In other words, the whole thing may have happened as the plaintiff stated as a witness, and yet he could have escaped being hurt if his foot had not slipped.

The judgment of the city court is affirmed.

Affirmed.

McClellan, Sayre, and de Graffenried, JJ., concur.