Davis v. Western Railway of Alabama

• Decision Date: 20 June 1895
• Citation: 18 So. 173,107 Ala. 626
• Parties: DAVIS v. WESTERN RAILWAY OF ALABAMA.
• Court: Alabama Supreme Court

18 So. 173

107 Ala. 626

DAVIS v. WESTERN RAILWAY OF ALABAMA.

Supreme Court of Alabama

June 20, 1895

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

This action was brought against the appellee, the Western Railway of Alabama, by the appellant, Francis M. Davis, who was employed by the defendant as a switchman; and sought to recover damages inflicted upon the plaintiff, by getting his arm mashed, while trying to uncouple a car attached to a moving train on defendant's road, in obedience to orders from a superior officer, whom he was bound to obey. The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court gave the general affirmative charge in favor of the defendant, to the giving of which charge the plaintiff duly excepted. From a judgment in favor of defendant, the plaintiff appeals, and assigns as error, the giving of the charge in favor of defendant, and the rendition of judgment in its favor. Affirmed.

Farnham & Crum, for appellant.

George P. Harrison, Chas. P. Jones, and Lomax & Ligon, for appellee.

HARALSON J.

We all know, while it is not necessarily or inevitably a perilous thing, under any circumstances, for a switchman to go in between the cars of a moving train to uncouple them, that generally speaking, it is a habit attended with more or less danger. There was no proof on that subject on the trial of this cause. But, common experience teaches us that there are perils attending such a custom, and the books abound with instances illustrative of it. It is of general notoriety, and we may, therefore, take judicial notice of the fact, that the dangers of such a practice are so well recognized, that many railroad companies have deemed it necessary to promulgate rules forbidding it. The evidence in this case tends, without conflict to show, that the two cars between which plaintiff was injured, were double deadwood or buffer cars, obviously more dangerous to go between for the purposes of coupling or uncoupling than between cars not having the double deadwoods. He testifies, when he started to uncouple the cars, he got one foot on the inside of the track, and holding onto the corner of the car in front of him with his left hand, leaned his body towards the center, and took hold of the pin with his right, and had hold of it, when the slack was given, and the front car, or the one behind him, struck him and knocked him against the deadwoods,-which were necessarily between him and the drawhead,-and the sleeve of his coat was caught between the drawheads. This shows that the deadwoods were on the one side and the other of the drawheads, and were of the double pattern. In Railroad Co. v. Boland, 96 Ala 626, 11 So. 667, in speaking of cars of this pattern, and of the dangers of coupling them, we said, that the double deadwoods were so located with reference to the drawhead that it was impossible to see one without the other; that they were on each side of the drawhead, and a view of the buffers and drawhead, as attached to the car, should be sufficient notice to a man of average intelligence of the risk incident to the coupling of such a car; that ordinary observation could not fail to disclose to a brakeman the difference between these and other cars without the double deadwoods and that a higher degree of care was necessary to be exercised in coupling them.

The plaintiff in this case was a man, as shown, of 30 years of age, and had been employed in the business of switching cars and working on railroads for about nine years; had been working in defendant's yard about a year, and must have had full knowledge of the dangers attending the service. The evidence further shows, that the track at the place of the accident, was either down grade, in the direction the cars were moving, or that they had been given such a shove or kick,-in bringing them, by order of the plaintiff, onto this track from another,-as that they were moving more rapidly than the engine. The draw was taut, at the time, so that it became necessary, in giving the slack to enable the pin, coupling the cars, to be removed, to propel the engine backward, faster than the cars were moving in order to run them together, and thus give the necessary slack to admit of the desired uncoupling. The plaintiff makes this plain. The cars were moving backwards, towards the north, when plaintiff went between them. He was on the left hand side of them. He says, "I went in between the cars and caught hold of the pin, and as I did so, the engineer gave the slack, which means driving the cars together, and the front car struck me. *** I mean by slack, that sometimes it is necessary to shove the cars together, so as to get the pin out." It is evident, that when an engine is shoving cars, the deadwoods are already together, and the slack is already on, so that the coupling pin, without more, can be removed. The very opposite of this was the condition of this train. The cars by impetus of a down grade, or by a kick or running switch, as it is sometimes called, were pulling against and not being propelled at the time by the engine, and the draw was taut. When the...