Alabama G.S.R. Co. v. Yarbrough

• Decision Date: 11 January 1888
• Parties: ALABAMA G. S. R. CO. v. YARBROUGH.
• Court: Alabama Supreme Court

3 So. 447

83 Ala. 238

ALABAMA G. S. R. CO. v. YARBROUGH.

Supreme Court of Alabama

January 11, 1888

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

This action was brought by Nathaniel Yarbrough against the Alabama Great Southern Railroad Company to recover damages for injuries sustained by the plaintiff from a blow he received from a steam-shovel, the property of the defendant, and being worked at the time for their benefit and under their direction. It was shown on the trial in the court below that the plaintiff, at the time he received the injury, was standing on the rear end of one of the cars, which was being loaded with slag by the said steam-shovel. The plaintiff testified, as a witness, that he had had a conversation with the conductor who was in charge of the train being loaded with slag, and that he gave him permission to stand on the car, and pick out the scraps of iron from the slag as it was thrown into the car. To the introduction of this testimony the defendant objected. The court overruled his objection allowed the evidence to go to the jury, and the defendant excepted. The plaintiff's counsel asked plaintiff if his other arm had ever been injured previous to the injury here complained of, and to state its present condition. The defendant objected to this question. The court overruled his objection, and he excepted. In answer to this question, the plaintiff said that his other arm had been very badly shot in the late war, and that he now had but little use of it. To the introduction of this testimony the defendant objected. The court overruled his objection, let the same go to the jury, and the defendant excepted. The defendant offered to prove by one of its witnesses, who was operating the steam-shovel, that "after the shovel had started, and plaintiff had placed himself under it, no human effort could have prevented the lever or bucket from swinging around to its accustomed place." To this evidence the plaintiff objected. The court sustained the objection, and the defendant excepted. These several rulings are assigned as error.

Denson, Dobbs & Wood, for appellant.

S L. Weaver and Stiles Purser, for appellee.

CLOPTON J.

It is specially pleaded that defendant contributed to his own injury in this, as is claimed, that he was wrongfully on the car of defendant while it was being loaded with slag. To disprove this, the plaintiff was permitted to testify that the conductor had previously informed him that he could stand on the car, and pick the scrap-iron out of the slag while it was being loaded. It is contended that the evidence is illegal, by reason of the conductor's want of authority to grant such permission. The conductor was an agent of the defendant corporation, having control and management of the train, and charged with its operation. Being thus charged his permission for the plaintiff to stand on the car is not outside of the scope of his authority, though he may have been guilty of a breach of duty for which he is answerable to the company. A person riding without fare, by permission of the conductor, is not a trespasser, though the train is not intended and operated for the carriage of passengers, and though the conductor has no authority to permit such person to ride. The plaintiff, as between himself and the defendant, was not a trespasser, nor wrongfully on the car, so as to constitute the act in itself contributory negligence, if he was on the car by permission of the conductor, unless it was known to him that the conductor exceeded his authority. Wilton v. Railroad Co., 107 Mass. 108; Gradin v. Railway Co., 11 Amer. & Eng. R. Cas. 644; 2 Wood, Ry. Law, § 298. For this purpose the evidence was...