Birmingham Mineral R. Co. v. Wilmer

• Decision Date: 23 November 1892
• Citation: 97 Ala. 165,11 So. 886
• Parties: BIRMINGHAM MINERAL R. CO. v. WILMER.
• Court: Alabama Supreme Court

11 So. 886

97 Ala. 165

BIRMINGHAM MINERAL R. CO. v. WILMER.

Supreme Court of Alabama

November 23, 1892

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

Action by Albert E. Wilmer against the Birmingham Mineral Railroad Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

The facts of this case and the rulings of the court upon the evidence are sufficiently shown in the opinion. The court after instructing the jury that there could be no recovery by plaintiff on account of any fault of defendant in using the kind of engine it used on that occasion, instructed the jury in its oral charge as follows. "I am requested to charge you on this point: An engineer in the discharge of his duty must have reference to the nature and character and condition of the appliances he has to deal with, and he must exercise care with reference to those conditions; for instance, if he had an engine of a peculiar kind, that required more care to start it right than other engines, it would be his duty to have regard to that, and exercise that degree of care which the character of the engine called for. If there is anything in the evidence with reference to the character of the engine that would throw any light upon the duty of the engineer on what would be ordinary care on his part, it would be proper for you to consider the conduct of the engineer in that light." The defendant duly excepted to this portion of the court's oral charge to the jury, and also reserved an exception to the following charge, which was given by the court at the request of the plaintiff: "The plaintiff in this case does not have to satisfy the jury beyond a reasonable doubt that the engineer was negligent, but the burden goes only to the extent that the plaintiff must reasonably satisfy the jury of such negligence." The defendant thereupon requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) That, if the jury believe the evidence in this case, they must find for the defendant. (2) There is no evidence in this case that the brake wheel which plaintiff testified to having hold of at the time of the alleged jerk was revolving while plaintiff had hold of same. (3) That, under the evidence of this case the burden of proof of contributory negligence is not upon the defendant. (4) That in this case, under the evidence, the burden of establishing contributory negligence upon the part of the plaintiff is not upon the defendant. (5) That, if the jury believe the evidence in this case, they will find that from the time defendant's engineer blew off brakes and the time of the starting or jerking the car on which plaintiff stood was 10 or 15 seconds. (6) That if the jury believe from the evidence that the testimony of plaintiff tended to show that he was guilty of contributory negligence in not taking proper precautions to prevent his injury, then the burden of proof of contributory negligence is not upon the defendant, but is upon the plaintiff." There was judgment for the plaintiff, and the defendant brings this appeal, and assigns as error the various rulings of the lower court.

Hewitt, Walker & Porter, for appellant.

L L. Dean and Smith & Lowe, for appellee.

MCCLELLAN J.

This is an action by Wilmer against the Birmingham Mineral Railroad Company, sounding in damages for personal injuries alleged to have been suffered by the plaintiff, while discharging his duties as a brakeman on a freight train of the defendant company, through the negligence of the engineer in the management and operation of the locomotive attached thereto. The train having stalled while running on a high trestle, up a very considerable grade, and brakes having been applied to hold it in place until another start could be made, the engineer signaled for the brakes to be released. Plaintiff had charge of two brakes. He promptly responded to the signal, and, having released one brake, had reached, and was in the act of releasing, the other, the engine meantime being put in motion, when the momentum of the engine after taking up the slack between the cars nearer to it was communicated to the car on which plaintiff was, and brought that into motion with a "jerk," which threw or caused the plaintiff to fall off to the ground under the trestle, a distance of 45 feet, and produced the injuries now complained of.

1. Plaintiff was allowed to testify, against objection, that the jerk by which his car was set in motion "was an unusual hard jerk," and this ruling is the subject-matter of the first assignment of error. It is common knowledge, and also shown by the evidence in this case, that the several cars in a freight train are brought into motion by a jerk occasioned by sudden taking up of the slack between them, as the momentum of the locomotive is communicated from one car to another. Jerking with some degree of violence may therefore be said to be generally necessary and incident to the starting of such trains, and the fact that it occurs, in a given instance, with that degree of violence which is usual under the particular circumstances as to grade, character of cars, and the like, is no evidence of negligence in setting the train in motion. On the other hand, when this violence is greater than is usually necessary or usually incident to starting, under the particular circumstances, it is some...