Louisville & Nashville R. R. v. Gray , 191 Ala. 514 ( 1914 )

de GRAFFENRIED, J.

The plaintiff was injured while at work, or while he claims that he was at work, on a dead engine in a roundhouse at Decatur. The injury occurred about 1 o’clock at night. While the plaintiff was at work, or claims that he was at work, on the engine, another engine was run into the roundhouse, and, while this latter engine was being put in place, it struck a tank, causing it to collide with the dead engine upon which the plaintiff was at work, or upon which he claims he was at work, and the plaintiff thus received painful and serious injuries.

(1) According to the testimony of the plaintiff, he had his lantern or light sitting on the floor of the roundhouse when the injury occurred. While the plaintiff was on the stand testifying as a witness in his own behalf, the defendant offered to prove by him that there was a rule at the roundhouse requiring servants, while-at work on a dead engine, to put a light on the engine. This rule — if there was such a rule — was a reasonable-one. The reasons for it are plain. A light upon a dead engine would herald to the other employees of the defendant that there was a man at work upon the engine, and that therefore they should govern themselves, accordingly. In this case the engineer in charge of the-live engine testified that he did not know of the presence of the plaintiff on or near the dead engine, and it was for the jury — if there was a rule which the plaintiff had violated — to say whether the violation by the plaintiff of this rule was not a direct and contributing cause of his injury. Under the' pleadings in this case, the trial court should have required the plaintiff to testify on the subject above referred to. — Dresser on Employees Liability, § 118, pp. 625, 626; Cogbill v. L. & N. R. R. Co., 152 Ala. 156, 44 South. 683; 8 Ency. Ev. pp. 544-546.

We do not know why the trial court sustained the plaintiff’s objection to the question calling for the above testimony, but the record shows the ruling and an appropriate exception. It seems to be a rule of universal application, in cases of this sort, that a defendant, to sustain a plea of contributory negligence, may show that, at the time of the injury, the servant was violating a rule of the master, and that he knew of the existence of the rule, provided, of course, the violation of the rule had a causal connection, or probably had a causal connection with the injury. The record in this case fails to show any reason why the master did not have the right to show the existence of this rule, and knowledge of its existence on the part of the servant, by the testimony of the plaintiff himself. The testimony sought to be elicited was relevant and material, and, in sustaining the plaintiff’s objection to the question calling for it, the trial court committed reversible error.

2. There are many questions presented by briefs of counsel, which we have not above discussed. This is an ordinary suit under the Employer’s Liability Act, and the other questions discussed in briefs of counsel, to which we make no reference in this opinion, have been frequently before the courts, and fully determined, and we deem it unnecessary to discuss them.

Reversed and remanded.

McClellan, Sayre, and Gardner, JJ., concur.