Hissong v. Richmond & D.R. Co.

• Citation: 8 So. 776,91 Ala. 514
• Parties: HISSONG v. RICHMOND & D. R. CO.
• Decision Date: 28 January 1891
• Court: Supreme Court of Alabama

8 So. 776

91 Ala. 514

HISSONG v. RICHMOND & D. R. CO.

Supreme Court of Alabama

January 28, 1891

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

Action for John S. Hissong against the Richmond & Danville Railroad Company for damages for personal injuries. The trial court directed a verdict for defendant, and plaintiff appeals.

Bowman & Harsh, for appellant.

Jas. Weatherly, for appellee.

CLOPTON J.

Appellant who was in the employment of appellee as yard switchman, sues to recover damages for an injury suffered while engaged in coupling cars. The first count of the complaint alleges that the injury was caused by defects in the condition of the track and the coupling appliances. Plaintiff's right to recover under this count may be eliminated from consideration of the case, there being no evidence tending to show that the defects were the proximate cause of the injury, or that the failure to discover and remedy them was owing to the negligence of defendant, or of any person in the employment of the company to whom was intrusted the duty of seeing that the ways, works, machinery, and plant were in proper condition. The second count alleges that the injury was caused by negligently moving the engine, and cars attached thereto, while plaintiff was between the cars, performing the service pertaining to his employment. It is framed under subdivision 5, § 2590, Code, which declares that the employer is liable to answer in damages to the employe when the injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has charge or control of any engine, car, or train, upon a railway, or any part of the track of a railway. Plaintiff entered the employment of defendant on the day before the accident. One of the conditions of the contract of employment was "that the regular compensation paid for the services of employes shall cover all risks incurred and liability to accident from any cause whatever. If an employe is disabled by accident or other cause, the right to claim compensation for injuries will not be recognized." The statute makes the employer answerable in damages when an employe is injured in any of the classes of negligence specified therein. Such a stipulation, being in contravention of the statutory provisions, is opposed to public policy, and does not avail to secure non-liability for an injury caused to an employe by defendant's own negligence or misconduct in the cases specified in the statute.

It is uncontroverted that plaintiff had knowledge of a rule established by defendant, forbidding coupling by hand, and requiring the use of sticks, which would be furnished for the purpose, long enough to prevent going between the cars; and that plaintiff, by the contract of employment agreed to strictly comply with the regulation; and that a stick for and answering the purpose was furnished him. It appears from his own testimony that when he went in between the cars the draw-heads were together. Had he stood outside, it is manifest he would not have been injured. Having knowledge of the rule, and having contracted to comply with it, if the facts be, which the evidence of Barton tends to show, that plaintiff, in disregard and violation of the rule, went inside of the track, while the engine and cars attached were in motion, closely approaching the car to be coupled, attempted to make the coupling with his hands, and was injured in consequence, this constituted contributory negligence, and a complete defense to the action. Railway Co. v. Propst, 83 Ala. 518; ^[1] Railroad Co. v. Watson, (Ala.) 8 South. Rep. 249. But contributory negligence of the party suing for personal injuries will not avail, in all cases and under all circumstances, to defeat a recovery; the rule has its exceptions and qualifications. The general affirmative charge in favor of the defendant should not have been given, if there be...