13 So. 209 (Ala. 1893), Richmond & D.R. Co. v. Hissong
|Citation:||13 So. 209, 97 Ala. 187|
|Opinion Judge:||HARALSON, J.|
|Party Name:||RICHMOND & D. R. CO. v. HISSONG.|
|Attorney:||James Weatherly, for appellant. Bowman & Harsh, for appellee.|
|Case Date:||June 10, 1893|
|Court:||Supreme Court of Alabama|
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...
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