Highland Ave. & B.R. Co. v. Walters

• Citation: 8 So. 357,91 Ala. 435
• Court: Supreme Court of Alabama
• Decision Date: 09 December 1890
• Parties: HIGHLAND AVE. & B. R. CO. v. WALTERS.

8 So. 357

91 Ala. 435

HIGHLAND AVE. & B. R. CO. v. WALTERS.

Supreme Court of Alabama

December 9, 1890

Appeal from circuit court, Jefferson county; DAVID D. SMITH, Special Judge.

This was an action brought by the appellee, Jennie C. Walters, as the administratrix of Edward F. Walters, who was killed, as alleged, by the negligence of the defendant, while he was in its employment as yard-master and conductor. The circumstances and facts and tendencies of the evidence, as shown by the bill of exceptions, are sufficiently set forth in the opinion of this court. In its general charge, the court, among other things, charged the jury as follows "Although a servant may continue in the business of a master, and continue to discharge his duties after he has knowledge that the discharge of the duties will be dangerous to himself by reason of the negligence of the defendant, yet if that danger is so apparent to him that he ought to know that injury to himself would be unavoidable from the continuance of the discharge of that duty, he would be guilty of contributory negligence in continuing to discharge the duty; but, if the danger is not so apparent that the injury appeared to be inevitable from a discharge of the duty, he would be justified in continuing in the service of the company, and continuing to discharge the duty assigned to him, notwithstanding he might know that it was simply dangerous to continue in the discharge of that duty. There is another principle of law which has been declared by the supreme court in reference to questions arising under this statute, and that is this: While a servant does not assume the risks incident to a continuance in the service after he discovers the defect in the machinery, he is required to exercise ordinary care; and if he can discharge the duties that he has undertaken to perform by discharging them in a safer way,-if there are two ways, in other words, by which he can discharge his duties to the employer, one of them a safe way, and the other less safe, and he has knowledge of the dangerous condition of the track, or of the machinery,-he would be guilty of contributory negligence, which would prevent a recovery in not resorting to the safe mode of performing his duties. To apply that principle to this particular case: If the plaintiff's intestate was on the foot-board in the discharge of his duty, and his duty required him to be there, and if he knew that the track ahead of him was in a dangerous condition by reason of a pile of coal near to it, and there was any way for him to discharge that duty by riding at some safer place upon the engine, he ought to have done it; and, if he failed to do it, he would be guilty of a want of ordinary care, and he is guilty of contributory negligence, which would prevent a recovery in this case. You will also take into consideration the nature of the coal pile, the nature of the obstruction upon the track, as to whether it was an obstruction that threatened an immediate and inevitable danger to the plaintiff's intestate, or whether it was an obstruction less threatening in determining the amount of care required of the plaintiff's intestate in taking care of himself. You may always look to his knowledge of the character of the defects in passing on the question of contributory negligence." The defendant excepted to the giving of this part of the general charge by the court, and also reserved an exception to the following other portion of said general charge "That although the servant of a master was at his post of duty, and in the discharge of his duty, yet, if there was an obstruction on the track, and the obstruction was of such a character, and known to him to be such, that injury to him would result from a continuance in the discharge of his duty at that particular place, and the injury was the inevitable result of continuing at that place, then he would be required to exercise ordinary care and caution in selecting some place of safety; but, if that obstruction on the track was not of such a character as to show that the injury to the plaintiff's intestate would be inevitable from remaining at his post of duty, then he was not required to abandon the discharge of his duty altogether, but would simply be required to select some safer place to discharge his duty, if there was a safer place."

The plaintiff asked the court to give the following charges in writing, which the court did, and the defendant excepted separately and severally to each charge so given: "(1) In determining whether the plaintiff's intestate was at his post of duty while standing on the foot-board, the jury can consider what is common knowledge, if there is any common knowledge on that subject. (2) In determining whether the foot-board in front of the switch-engine was made for the plaintiff's intestate to ride on while in the performance of his duties, the jury can consider what is common knowledge, if there is any common knowledge of that subject. (3) If you believe from the evidence that the coal pile was an obstruction to the track, but not of such a threatening or dangerous character as to reasonably impress the plaintiff's intestate with certain and inevitable injury to him, then you are authorized to consider this in connection with all the other evidence in the case, in determining whether the plaintiff's intestate was guilty of contributory negligence."

The defendant then requested the court to give the following written charges, which the court refused to do, and the defendant thereupon duly excepted to the refusal to given each charge so requested. "(1) Even if the post of duty of plaintiff's intestate was on the foot-board, yet plaintiff's evidence shows that plaintiff's intestate knew that the coal pile was in dangerous proximity to the foot-board in passing, and was dangerous, and with this knowledge, and with the convenient means of avoiding it by getting on the bumper, plaintiff's intestate disregarded the danger, and continued to remain on the foot-board, and from a collision of the foot-board and the pile of coal plaintiff's intestate was injured, then, by remaining on the foot-board with this knowledge, plaintiff's intestate was guilty of contributory negligence, and plaintiff cannot recover. (2) That even if the foot-board of the locomotive was put there for the purpose of being stood upon or ridden upon by the employes, plaintiff's evidence, which is undisputed, shows that plaintiff's intestate knew that the coal was piled along-side the track, and said pile was liable or likely to produce injury to a person standing or riding on the foot-board, and plaintiff's intestate, with this knowledge, continued to stand there, then plaintiff's intestate would be held to have assumed all the risks and dangers incident to his position on the foot-board arising from the coal pile, and, if the injury was caused by a collision of the foot-board with the coal pile, then plaintiff cannot recover. (3) If the jury believe from the evidence that if, by taking his position on the foot-board in front of the engine, Edward F. Walters was killed, when if he had taken his seat in the cab of the locomotive, or on the tender, or on the flat-car drawn by the engine, or on the bumpers, said Walters would not have been killed, then the verdict of the jury must be for the defendant. (4) The court charges the jury that the evidence shows that Edward F. Walters was in charge or command of the train by which he was killed, and could have taken a position of safety on the train, as in the engine, cab, or on the tender or flat-car, and said Walters voluntarily assumed a position on the foot-board in front of the engine, and that said Walters was under no command or necessity to stand on the foot-board, while the train was in motion, then said Walters was guilty of...