Alabama G.S.R. Co. v. Roach

• Decision Date: 02 May 1896
• Citation: 110 Ala. 266,20 So. 132
• Parties: ALABAMA G. S. R. CO. v. ROACH.
• Court: Alabama Supreme Court

20 So. 132

110 Ala. 266

ALABAMA G. S. R. CO. v. ROACH.

Supreme Court of Alabama

May 2, 1896

Appeal from circuit court, Jefferson county; Thomas R. Roulhac Judge.

Action by John Roach against the Alabama Great Southern Railroad Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Smith &amp Weatherly, for appellant.

Lane &amp White, for appellee.

COLEMAN J.

The action is in case, brought by the appellee, Roach, to recover damages for personal injuries. Although the assignments of error are very numerous, a few principles are determinative of all questions material to the case.

The court sustained a demurrer to plaintiff's third plea, as amended, which set up the defense of contributory negligence. The ruling of the court sustaining a demurrer to this plea is assigned as error. The complaint avers that plaintiff was an employé of the defendant, "whose duty it was to inspect cars of the defendant to test their fitness for use; and, to perform this duty, it was necessary to go underneath the cars; and while engaged in such employment *** in the yard limits were such inspection usually took place, *** one Cherry, the defendant's switch foreman, who had control of an engine and cars of defendant, negligently ran the engine and car against the car he was inspecting, and inflicted the injury, and negligently failed to have a watchman on lookout on the end of said box car towards where the plaintiff was, whose duty it was to have such signal or lookout, to give the engineer a signal that there was an obstruction on the track," etc. The plea avers that the car being inspected by the plaintiff was on a side track that it was dark; and that it was difficult or impossible for the plaintiff to be seen or discovered; "and that plaintiff knew, or in the exercise of due care ought to have known, that the switching of trains of cars was going on in the said yard limits, and that cars or a train of cars would probably be switched or run at any moment upon the side track where he then was at work. Nevertheless, plaintiff did not put out any light or other signal on or about said car where the was at work, to notify persons in charge of such switching or trains of his presence under or about said car on said side track, and without being aware that any proper precaution had been taken or used by any employé of the defendant *** to warn persons in charge of such switching cars or trains of his presence under or about said car," etc. The argument that the plea is insufficient as a plea of contributory negligence to the complaint is-First, that it fails to aver that the danger incurred by the plaintiff "was obvious"; and, second, that plaintiff had a right to rely upon the presumption that plaintiff's employers would do their duty in having a watchman or lookout to discover the obstruction on the track, and signal the engineer in charge of the switching train. Had the pleader, after stating the facts constituting the alleged negligence of the plaintiff, further averred, as a conclusion, that the danger thereby incurred "was obvious," such additional averment would have added nothing to the force or sufficiency of the facts stated. The plea, in substance, states that the plaintiff, at night, when he could not be seen, without putting out signals to give notice of his presence, and without the precaution of ascertaining that one knew of his presence who might give notice to approaching trains of his presence and position, put himself under a car on a side track, at a time and place when he knew that cars were being switched on the side track, and "probably" a car would be switched or run upon the side track where he was at work. In other words, appellee's contention is that if a person does an act which he knows, or could know by the exercise of due care,-a care which, by reason of his employment and duty to be performed, he is called upon to exercise,-will "probably" result in his injury, he may yet run such risk voluntarily without being guilty of contributory negligence. We do not understand such to be the law; nor do we understand the law to be that the right of one employé to presume that other employés will do their duty will exempt him from responsibility for his own negligence. In the case of Railroad Co. v. Mothershed, 97 Ala. 261, 268, 12 So. 714, we declared the law in such cases to be that one employé has no more...