Richmond & D.R. Co. v. Hissong

• Citation: 97 Ala. 187,13 So. 209
• Court: Supreme Court of Alabama
• Decision Date: 10 June 1893
• Parties: RICHMOND & D. R. CO. v. HISSONG.[1]

13 So. 209

97 Ala. 187

RICHMOND & D. R. CO. v. HISSONG.^[1]

Supreme Court of Alabama

June 10, 1893

Appeal from circuit court, Jefferson county; S. H. Spratt, Judge.

Action by J. S. Hissong against the Richmond & Danville Railroad Company for personal injuries. From a judgment for plaintiff defendant appeals. Reversed. Application for rehearing denied.

For former appeal, see 8 South. Rep. 776.

The evidence for plaintiff tended to show that, when he entered the service of defendant as a switchman, he signed one of its regular applications for service, a part of which was a rule providing that "cars must not be coupled by hand. Sticks for the purpose, long enough to prevent going between the cars, will be furnished on application to yard master's office." The next day after plaintiff's employment it became his duty to make a coupling, under the following circumstances: There were 12 or 14 cars being taken from the main line onto the side track to be coupled to some cars standing on the side track. For the purposes of making the coupling, having left his coupling stick on the engine plaintiff picked up a piece of board, and, after guiding the link into the drawhead of the other car, and thereby attempting to make the coupling, he saw that the pin would not go down. The plaintiff then struck and hammered the pin and after discovering that he could not make the coupling with the stick, he stood out on the main track, and signaled to the engineer to stop. The engineer observed the signal, and stopped the train, and the plaintiff went in between the cars, and while working with the pin, a few seconds afterwards, the engineer, without any signal, moved his train back, and the plaintiff, in trying to escape, got his foot caught, and was run over, and so injured that it was necessary to have his leg amputated. The defendant's testimony tended to contradict that portion of the plaintiff's evidence which went to prove that the engineer had stopped the train when the plaintiff went in between the cars, and there was some conflict as to whether the plaintiff used the stick when attempting to make the coupling. The court, in its oral charge to the jury, read as a part thereof the portion of this court's opinion in the case of Hissong v. Railroad Co., 8 South. Rep. 776, and to the reading of this portion of the opinion the defendant duly excepted. In his oral charge to the jury, the court, after instructing them as to the effect of the engineer's knowledge of the plaintiff's position after he had stopped the train, continued: "Now, do you believe the facts are as stated by the plaintiff,-that he made the signal to the engineer, which was observed and obeyed by him, and that, when the engine was brought to a stop, he thereupon went in between the cars, and attempted to couple the cars with his hands, (being unable to couple them with a stick,) and while in that dangerous position the engineer moved his train, and thereby caused the injury? If you believe this, then the plaintiff would be entitled to recover. But if he went in there while the train was in motion, and went in to couple, with his hands, not attempting to use a stick, and the engineer knew nothing about it, then there can be no recovery in this case. You will, of course, try this case just as you would try any other. You will not apply a rule to a corporation that you would not to an individual. The plaintiff may have been injured, and very greatly so, yet if he maimed himself, there can be no recovery." Upon the introduction of all the evidence the defendant, among other written charges, requested the court to give the following: "(1) If the jury believe the evidence, they must find for the defendant. (2) If the jury believe the evidence, they are bound to find that Barton, the foreman of the engine, who was directing the movements of the engine and train, was not guilty of any negligence." "(10) There is no evidence in this case that any custom and practice among switchmen on the defendant's road, of going in between the cars to couple, without using coupling sticks, was known to, and acquiesced in by, defendant. (11) With regard to the custom which has been testified about, as to going in between cars, in certain contingencies, to make couplings, unless you believe from the evidence that such custom was known to the defendant, and acquiesced in by it, or had prevailed for so long a time as that defendant was bound to know, and would be presumed to have acquiesced in, it, then you should not consider such custom, in arriving at your verdict."

James Weatherly, for appellant.

Bowman & Harsh, for appellee.

HARALSON J.

The defendant interposed the defense of contributory negligence by a special plea, to which the plaintiff demurred, on the ground that this defense was available under the general issue which had been pleaded. The court sustained the demurrer. This ruling was erroneous. Railroad Co. v. Crocker, (Ala.) 11 South. Rep. 262. But in this case that was error without injury, since the parties tried the question of contributory negligence on the part of the plaintiff, and of wanton, reckless, or intentional negligence on the part of defendant, as though appropriate pleadings for the trial of such issues had been made in the cause. We have many times held that the sustaining of a demurrer to a special plea, if erroneous, is not ground of reversal, when the record shows that the defendant had the full benefit of the same defense under his other pleas. Railroad Co. v. Davis, 91 Ala. 487, 8 South. Rep. 552; Oliver v. Insurance Co., 82 Ala. 417, 2 South. Rep. 445; Owings v. Binford, 80 Ala. 421.

On the cross-examination of defendant's witness Barton, plaintiff's counsel asked, and the court allowed, against the objection of defendant, the question and its answer: "What kind of coupling stick did the R. & D. R. R. Co., at that time, furnish its employes?" There was no error here, since the defendant had made inquiries of the witnesses, the tendency of which was to prove that the stick the plaintiff used on the occasion of the injury was not a suitable one. It was therefore competent for plaintiff to show what kind of sticks the defendant provided for its employes, and that this one was as good. "Sticks long enough to prevent going between the cars," was the requirement of the company of its switchmen. It was competent for plaintiff to show that he had on the occasion a stick that answered this requirement, and one of the ways of showing it was by proof comparing it with the sticks the company proffered to, but did not make it obligatory on, switchmen to use.

The court allowed the witness Barton to testify, against the objection of the defendant, that it was the custom and practice of the railroad company, at the time of the injury to plaintiff, "where switchmen had tried to make the coupling, and had stood on the outside and hammered with the stick, and the pin failed to go down, to signal the engineer to stop, and, after the engine had stopped still, for him to go in and see what was the matter." The question propounded to this witness on the former trial, and which was passed on when the case was here on appeal, (91 Ala. 514, 8 South. Rep. 776,) was: "Was it not the custom and practice on defendant's road, and on all well-regulated railroads, for switchmen, when they find it impossible to make a coupling with a stick from the outside, to go in between the cars for that purpose, after having first signaled the engineer to stop the train, and the train has been stopped in response to the signal?" This court said in reference to the proof of this custom that it "was in view of some of the tendencies of the evidence, relevant and admissible. Such custom and practice, if they existed, tended to show that in such case defendant waived the rule requiring coupling to be done with a stick, and forbidding going in between the cars for that purpose, or, at...