Helton v. Alabama Midland Ry. Co.

• Decision Date: 11 January 1893
• Citation: 97 Ala. 275,12 So. 276
• Parties: HELTON v. ALABAMA MIDLAND RY. CO.
• Court: Alabama Supreme Court

12 So. 276

97 Ala. 275

HELTON v. ALABAMA MIDLAND RY. CO.

Supreme Court of Alabama

January 11, 1893

Appeal from circuit court, Montgomery county; John P. Hubbard Judge.

Action by John R. Helton against the Alabama Midland Railway Company. Judgment for defendant. Plaintiff appeals. Reversed.

This action was brought by the appellant against the appellee, and sought to recover damages for injuries alleged to have been inflicted upon the plaintiff by reason of the negligence of the defendant or its employes. There was judgment for the defendant, and the plaintiff brings this appeal. Reversed and remanded.

The undisputed evidence in this case established the following facts: The defendant, an Alabama corporation, owned and operated a certain railroad running from Montgomery, Ala., to Bainbridge, in the state of Georgia, and employed the plaintiff in the capacity of brakeman and flagman upon one of its freight trains which left Montgomery about 3:30 A. M. on the morning of the 16th day of June, 1890, and which continued to run until about 10:30 o'clock P. M., that day, when the plaintiff received the injury for which he sues. That the train upon which the plaintiff was employed had orders to meet an approaching train bound for Montgomery at a switch near Josephine station, in the state of Georgia and arriving there at said switch before the approaching train, took the side track, but that the switch was too short to enable the train to clear the main track, so that it became necessary to send a flagman forward to signal the approaching train in order to prevent a collision; and under these circumstances the conductor and the engineer, to both of whose orders the plaintiff was bound to conform, ordered the plaintiff to go forward, and warn the approaching train of the danger. That it thereby became the duty of the plaintiff to take his red and white lights, and go forward to meet the approaching train, and to stand in the middle of the track, and swing his red light across the track upon the approach of the train, as a signal of danger. That, in compliance with his duty, the plaintiff, upon being so ordered, took his white light in his left hand, and his red light in his right hand, both of which were good lights, and in perfect condition, and burning brightly, and went towards the direction from which the approaching train was expected. That after the lapse of about an hour from the time when the plaintiff left his train with his signals said train approached at the rate of about four or five miles an hour and under complete control, and ran over the right arm of the plaintiff while he was lying along the outside of the track with his arm across the rail. His white light was burning in his left hand, and his red light was still burning, and was upon the track. That this occurred about 100 yards from what was known as the "eastern switch," and at a place where it was not proper or usual to place lights, except as signals of danger; and the rules of the company, in rule No 65, provide that a signal imperfectly displayed, or the absence of a signal at a place where a signal is usually shown, must be regarded as a danger signal; and that a red light on or near the track signifies that there is danger ahead, irrespective of the manner in which it is placed. There was no evidence explanatory of the position of the plaintiff at the time he was injured, except his own testimony, which was, in effect, that he was sick at the time that he was ordered out, and that, after he had been waiting for the approaching train for a long time, and while he was walking up and down the track, waiting for its approach, he became deathly sick and unconscious, and supposed that he must have fainted, and that he was brought to consciousness by the train running over his arm; but the engineer of the train testified that the plaintiff had his elbow upon the track, and his head in his hand at the time he first saw the plaintiff, and it was insisted by the defendant that this evidence tended to show that the plaintiff was asleep upon the track.

The only dispute in the evidence was as to whether the red light was burning brightly or dimly at the time of the accident. The plaintiff testified that this light was burning brightly at the time that he fainted; that it was full of oil, and in good condition, and could be seen for more than a hundred yards. The engineer of the train upon which the plaintiff was employed testified that he saw both lights from a distance of about 900 yards about 5 minutes before the accident, but that he could not tell whether the lights were upon the ground or in the hands of the plaintiff. One of the brakemen upon the train that injured the plaintiff, and whose name was Jones testified that he saw both lights for three fourths of a mile before the engine struck the plaintiff, and that the red light was broken to pieces by the engine, and that the engineer of said train blew a signal for brakes about three quarters of a mile before he struck the plaintiff, and about the same time that the witness first saw the light. The engineer of this train, on the other hand, testified that he saw the white light for about three fourths of a mile before he struck the plaintiff, but that he first saw the red light about 15 feet before he struck it; that it was between the rails, but was burning dimly; that he saw the plaintiff about the same time that he saw the red light. One of the brakemen upon this train and the fireman both testified that they did not see the red light at all.

The only evidence as to the laws of the state of Georgia consisted of four sections of the Code of Georgia, which were introduced and read in evidence.

There were many exceptions reserved to the rulings of the court upon the evidence, by the plaintiff, which rulings are here assigned as error. (1) The plaintiff, being upon the witness stand, was asked the following question: "Have you, or not, sufficient education to enable you to earn a livelihood in a clerical calling?" The defendant objected to this question, which objection the court sustained, and the plaintiff duly excepted to this ruling. (2) The second exception arose upon the court's refusing to allow the plaintiff's attorney to ask the plaintiff, while upon the stand, the following question, after the plaintiff had stated that he was on the track between the rails at the time he fainted: "Is that, or not, the proper place for all brakemen charged with the duty of flagging a train under similar circumstances?" (3) The third exception arose upon the court's overruling the plaintiff's objection to the following question, propounded by the defendant to the plaintiff while upon the witness stand: "Didn't your crew ask to be sent to Bainbridge?" (4) The fourth question arose while the plaintiff was still upon the witness stand, when he was asked by defendant's counsel the following question: "Didn't Mr. Haylow offer you a position upon the Alabama Midland Railway after you were injured?" Plaintiff objected to this question, and duly excepted to the court's overruling his objection. (5) The fifth exception was taken to the court's overruling the objection by the plaintiff to the following question propounded by the defendant to him while a witness: Did you not refuse that position?" To which question the plaintiff answered that he did. (6) This exception arose upon the ruling of the court in sustaining the objection of the defendant to the following question propounded by plaintiff to the engineer in charge of the train upon which the plaintiff was employed: "At the time that you ordered the plaintiff to go forward to signal the approaching train, did or did not the plaintiff make any complaint to you, or say anything to you about feeling bad?" (7) The seventh exception arose upon the court's ruling in sustaining the defendant's objection to a similar question propounded by the plaintiff to a witness, who was a brakeman upon the same train as was the plaintiff, and who was present at the time the plaintiff left the train to go forward and signal the approaching train. The question was as follows: "When Helton left you with his lights, did he, or not, say to you anything about being sick?" (8) Upon the examination as a witness of the brakeman who was upon the train which injured the plaintiff, the defendant asked him the following question: "Were you, or not, in a better position to see up the track than Jones?" The plaintiff objected to this question, and duly excepted to the court's overruling his objection. (9) After the witness Jones, who had been put upon the stand by the plaintiff, had been discharged by the plaintiff, the defendant recalled said witness, against the objection of the plaintiff, and presented to him a written statement, which this witness had signed, and which, among other things, contained the following questions, viz.: "Question. Could he, by greater foresight on his part, have prevented his injury? If so, in what manner?" "Q. State all the particulars you may know relative to the accident." This written statement, which was here offered to be introduced, also contained the answers of the witness Jones, in which he expressed his suppositions as to how the accident occurred, and in which he answered the first question by saying: "Yes, by having attended to his duty, instead of going to sleep on the track." The plaintiff objected to the introduction, and moved the court to exclude each separate portion of this statement, and also moved to exclude the statement as a whole from the jury. The court overruled each of these several objections and motions, and to each ruling the defendant separately excepted. (10) The next exception was based upon the ruling of the court in admitting in evidence, at...