Georgia Pac. Ry. Co. v. Propst

• Decision Date: 17 April 1890
• Citation: 7 So. 635,90 Ala. 1
• Parties: GEORGIA PAC. RY. CO. v. PROPST.
• Court: Alabama Supreme Court

7 So. 635

90 Ala. 1

GEORGIA PAC. RY. CO. v. PROPST.

Supreme Court of Alabama

April 17, 1890

Appeal from circuit court, Fayette county; S. H. SPRATT, Judge. For former reports, see 4 South. Rep. 711, and 3 South. Rep. 764.

The case as presented by the record on this appeal is, briefly that the plaintiff was night watchman for the defendant the Georgia Pacific Railroad Company, at Patton Mines, and had boarded the train the morning of the accident, voluntarily for the purpose, as he says his habit was, to go down to his home, at Millport, to get his breakfast. After boarding the train, plaintiff says he was persuaded by the conductor to take the place of a sick brakeman, by offering to him the pay of both brakeman and switchman. After reaching a station about 10 miles distant from Patton Mines, the plaintiff received the injury complained of while attempting to couple a box-car to a coal-car. Additional facts are shown in the opinion. The second and fourth charges are as follows: (2) "If you believe the evidence in this case, you are bound to believe that the defendant's servants in charge of the train were competent and fit to perform their respective duties, and you cannot consider arguments of counsel for the plaintiff to the contrary." (4) "In this case there is no complaint that any of the crew on the train were incompetent or unfit for the positions they occupied; and you cannot consider any testimony, or any arguments of counsel bearing on that matter."

STONE C.J.

One of the defenses in this case was contributory negligence. In maintenance of that defense, it was attempted to be shown that one of the rules of running the trains of the defendant corporation was that car coupling should not be done with the hand, but with coupling-sticks kept on its trains for the purpose; that these rules were printed, and carried on its trains; and that plaintiff had knowledge of that rule, he having read the book of rules. A witness was asked if there was not such rule; and, on proof that the rules had been printed in book form, which was neither produced, nor its absence accounted for, the testimony was objected to, and he was not allowed to testify to its contents. It is contended for appellant that this question arose collaterally, and that therefore the rule requiring the production of the best evidence does not apply. 3 Brick. Dig. p. 439, § 486. We do not so regard the question. Plaintiff's negligence, contributing proximately to the injury complained of, was the issue raised by the pleadings; and any fact tending directly to establish it could not be regarded as merely collateral to the main inquiry. A knowing disregard of so wholesome a rule, and the adoption of one more perilous, would be negligence,-the leading factor in the defense set up. There was no error in rejecting this testimony.

This is the third appeal in this cause. 83 Ala. 518, 3 South. Rep 764, and 85 Ala. 203, 4 South. Rep. 711. The first three counts of the complaint, as shown in the present record, have been heretofore passed on, and each pronounced sufficient. They are not questioned on this appeal. We have also held that when, in running a train on a railroad, one of the brakemen falls sick, thus reducing the force below the requisite standard for safely handling the train, "there must be discretion and authority somewhere to supply the place of disabled or missing servants, and no one could exercise this power so well or so prudently as the conductor in charge of the train. We will therefore treat the plaintiff as the lawfully employed servant of the company." When the case was first before us, it was not questioned that one of the regular brakemen on the train was sick, and that plaintiff, Propst, was discharging the duties of brakeman at the request, or under the command, of the conductor. On the second trial the proof was much less full on the question of plaintiff's employment by the conductor, and we held that it was insufficient to prove the averment that he had been so employed. On the third or last trial the proof on this subject was much fuller, both by plaintiff and other witnesses introduced by him. It fully justified the submission of the question to the jury as one of the...