Alabama Mineral R. Co. v. Marcus

• Decision Date: 26 May 1897
• Citation: 115 Ala. 389,22 So. 135
• Parties: ALABAMA MINERAL R. CO. v. MARCUS.
• Court: Alabama Supreme Court

22 So. 135

115 Ala. 389

ALABAMA MINERAL R. CO. v. MARCUS.

Supreme Court of Alabama

May 26, 1897

Appeal from circuit court, Shelby county; George E. Brewer, Judge.

Action by R. L. Marcus against the Alabama Mineral Railroad Company. Verdict and judgment for plaintiff, and motion for new trial by defendant, which being overruled, defendant appeals. Reversed.

This suit was brought by the appellee, R. L. Marcus, against the appellant, the Alabama Mineral Railroad Company, to recover damages for personal injuries received by him while in the employ of the defendant as a section hand. The complaint, as originally filed, contained six counts. The court sustained demurrers to the first, second, and fourth counts, and gave the general affirmative charge in favor of the defendant upon the sixth count, leaving only the third and fifth counts upon which the trial was had. In the third count the plaintiff set up the facts that while in the employ of the defendant as a section hand, and riding upon a hand car in the discharge of his duties as such employé, he was instructed by one Holmes the foreman of the section, to take hold of the front handle of the lever of the hand car for the purpose of helping to propel it; that the plaintiff, being only 19 years of age at the time, and having had only 5 days' experience as a section hand, protested, but was again ordered by the foreman to take the position; that while in such position, propelling the car, the foreman "negligently ordered and permitted the section hands who were propelling said car to run the same at a great, dangerous, and reckless rate of speed whereby the plaintiff lost his hold on said handle, lost his balance, fell out of the car in front of it, and was run over by it, whereby his spine was injured, and he was permanently paralyzed and crippled," etc. The negligence contained in the fifth count was that "said foreman was superintending and controlling the running and operating of said car, and run and operated the same so negligently, to wit, at so great, dangerous, and negligent a rate of speed that in consequence of which plaintiff, who was a minor nineteen years of age, and had had only five days' experience as a section hand, all of which was known to said foreman, fell from said hand car in front of the same, and said car ran over him, whereby his spine was injured, and he was permanently paralyzed and crippled," etc. The defendant pleaded the general issue and two pleas setting up contributory negligence on the part of the plaintiff.

On the trial of the cause, as is shown by the bill of exceptions the plaintiff introduced evidence tending to show that at the time of the accident he was only 19 years of age, and had been in the employ of the defendant only 5 days; that he was ordered by the section foreman to go to the front part of the hand car to assist in propelling it; that in doing so the car was run at such a high rate of speed that the handle of the lever jerked loose from him and knocked him off. The plaintiff was then asked the following question: "State whether or not you had run that fast on the car before." The defendant objected to this question, on the ground that it was illegal, irrelevant, and incompetent, and duly excepted to the court's overruling his objection. The plaintiff answered that he had never run so fast before. The evidence for the defendant tended to show that, while the plaintiff was on the car, his hat blew off, and he turned the lever loose to get his hat, and that in doing so he lost his balance and fell from the car. Upon the cross-examination of E. C. Holmes, who was a section foreman, under whose direction the plaintiff was working at the time of the accident, he was allowed to testify, against the objection and exception of the defendant, that there were three more men on the car besides the plaintiff, who had worked with him longer on the section than the plaintiff had.

In the court's oral charge to the jury, among other things, he instructed them as follows: (1) "The whole question resolves itself down to this: Was the company, through its section foreman, negligent in running or permitting to be run that hand car, at the rate of speed at which it was run, and was that rate of speed so high, so unsafe, all the circumstances considered, that this young man who was on there under the circumstances shown thereby thrown from the car and injured? That is a question of fact, which you, of course, must determine from the evidence. Now, if he had been an ordinary hand,-an ordinary adult,-the law would presume that he took in his own hands the ordinary risks, and under the evidence here he would not be entitled to recover. But the evidence tends to show that he was not 21, and that he had not, therefore, it may be, reached maturity; in other words, it is a question for you to say, considering the condition, the development, the mental acumen...