Bivins v. Georgia Pac. Ry. Co.

• Decision Date: 03 May 1892
• Parties: BIVINS v. GEORGIA PAC. RY. CO.
• Court: Alabama Supreme Court

11 So. 68

96 Ala. 325

BIVINS v. GEORGIA PAC. RY. CO.

Supreme Court of Alabama

May 3, 1892

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

Action by R. R. Bivins, by his prochein ami, against the Georgia Pacific Railway Company, for personal injuries. Judgment for defendant. Plaintiff appeals. Affirmed

Smith & Lonee, for appellant.

James Weatherly, for appellee.

STONE C.J.

The city court charged the jury that, if they believed the evidence, they must find for the defendant. This charge presents the only question assigned as error. The plaintiff Bivins, was brakeman on a train of defendant, and was serving in that capacity. One of his duties was to set or throw the switches, when thereto commanded by the conductor. The personal injury for which this suit was brought was suffered by him in the attempt he made to get back on the train while the train was moving. The feat attempted was customary in that kind of service, and it is not contended that the machinery of the switch was out of order, or that the train was being moved too rapidly. The precise complaint is that the bed or cross-tie on which the machinery of the switch was placed, and from which it was operated, was not properly placed and supported to enable the operator to perform the service with safety to himself. The brakeman was acting under orders, and, so acting, had thrown the switch, was attempting to board the caboose while it was passing him, and in the attempt fell under the car and was injured. All the testimony is set out in the bill of exceptions, and it shows the following state of facts: The injury was sustained near Carona station. The switch at that place was on an embankment, 4 or 5 feet above the level of the ground. On one side, within 2 or 3 feet of the switch, was a trestle about 7 feet high, and on the other the ground sloped up gradually to the level of the track, which it reached at a point about 15 feet from the switch. The sides of the embankment were steep and the level surface at its top was wide enough, and only wide enough, to support the track. The machinery for throwing the switch, together with its horizontal, connecting rod were placed on a cross-tie, which, for this purpose was lengthened, and extended 4 or 5 feet beyond the embankment. This projecting part had no direct support. It presented 12 inches of level surface. The upright rod, or handle, used in throwing the switch, was about 2 1/2 feet from the rail of the track,-too near to permit a person to stand on the inside of it while a train was passing. A person attempting to board a passing train from the point where the switch was stationed must stand on the outside of the rod or handle, and from that point step on the steps of the passing train. The facts stated above were testified to by the plaintiff himself, and his was the only testimony on these questions. He testified further that he had served the road in the same service and on the same section for four months prior to the time at which he received the injury; that he had frequently performed the service he was performing on this occasion, and that he had never before encountered any inconvenience, or sustained any injury, in such service. He stated that the train was moving slowly, and that, when he had finished throwing the switch, the rear end of the train was a car length and a half distant from him, and that he thought he could have reached the level ground, 15 feet distant, before the car would reach that point. He stated, however, in this connection, that he had not locked the switch; "that it was the rule for switchmen, when they had thrown a switch, to stand by and watch it until the train passed, or to lock it, in order to secure the handle from flying off the staple; that he could have locked the switch, in which case he need not have stood by and watched it, but that locking it would have required the brakeman to unlock it for the train to pass the switch again, as it came back to go into the main line. *** Each of the crew had a key to unlock it with." The embankment, the switch, the trestle, and their surroundings were in the same condition they had been in since their construction, five years before. Plaintiff's testimony in immediate connection with the injury was as...