Huggins v. Southern Ry. Co.

• Decision Date: 13 June 1906
• Citation: 148 Ala. 153,41 So. 856
• Parties: HUGGINS v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

41 So. 856

148 Ala. 153

HUGGINS v. SOUTHERN RY. CO.

Supreme Court of Alabama

June 13, 1906

Appeal from City Court of Bessemer; B. C. Jones, Judge.

"To be officially reported."

Action by Joseph Huggins against the Southern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.

This was an action by appellant, who sues under the employer's liability act for damages received while coupling cars in defendant's yards at Selma. The first count avers a defect in the ways, works, plant, and machinery, etc. The second count avers the negligent order of one Porterfield, as superintendent, while in the exercise of such superintendence. The third count avers the negligence of said Porterfield, while in the exercise of superintendence, in negligently giving the engineer signal to back up the train at a great rate of speed while the plaintiff was coupling cars. The fourth count is a practical repetition of the third count. The fifth count attributes the negligence to R. O Harris, the engineer in charge of the train, in negligently running the engine back against the cars at a great rate of speed. The sixth count is a repetition of the fifth count.

The defendant filed a number of pleas, among them the following Plea 6: "The defendant, for further answer to the first second, third, and fifth counts of the complaint, says that the plaintiff was himself guilty of contributory negligence in this: That said plaintiff, under the name of Alex Huggins on March 30, 1901, entered into a contract of employment with the defendant, which said contract was in words and figures as follows: [Here follows the contract of employment, which provides that under no circumstances shall the brakeman couple or uncouple cars except with a coupling stick, and that no brakeman or others must go between cars under any circumstances for the purpose of uncoupling, or for adjusting pins, where the engine is attached to the car, and assuming the individual duty of going to the railroad company and procuring a coupling stick of sufficient standard length, and of keeping such a stick always on hand. The contract further provides that he will not, in obedience to any orders from anybody, couple without this stick, and no one has any authority to discharge him for failure to couple without this stick.] And defendant says that in violation of the above contract the plaintiff negligently went in between the cars of the train, when he was injured, and negligently attempted to make a coupling without a stick, and while one section of said car was in motion, and was thereby guilty of contributory negligence." Plea 8 sets up contributory negligence on the part of the plaintiff for violation of a rule of the company prohibiting employés from getting in between moving cars to couple or uncouple them, with a knowledge of said rule. Plea 9 sets up contributory negligence, because plaintiff went in to couple cars when the cars were in motion, and it was unnecessary to go in to make the coupling. Pleas 8 and 9 were filed to the first, second third, and fifth counts of the complaint.

Demurrers to the sixth plea: "Said plea set forth a contract, and alleges a violation thereof, and yet the facts set out are not sufficient to show a violation. Said plea fails to aver or show that the coupling which plaintiff was making or attempting to make could have been made with a stick. Said plea fails to show that the coupling of the cars which the plaintiff was making or attempting to make when he was injured could be done without going in between the cars. Said plea fails to show that plaintiff knew that an engine was attached to the train or cars and was approaching when he went in between the cars to make the coupling. Said plea sets up a contract which is in contravention of section 1749 of the Code, opposed to public policy. Said plea shows on its face that it is an arbitrary rule of the defendant to require any one who desires to obtain employment with the defendant to sign one of the contracts as set out in the plea, not as a contract to be governed by while the employé is working for defendant, but as an artful scheme and a fraud, for the purpose of trying to escape liability in case of personal injury to the employé. Said plea fails to show or specify the facts which constituted the negligent act of plaintiff in violation of said contract."

Demurrers to eighth plea: "Said plea fails to allege that it was unnecessary for plaintiff to go between the cars to couple the same. Said plea fails to aver that the rule therein named was violated. Because the averments in said plea vary the obligation in said contract the plaintiff would not go in between the cars for the purpose of coupling or uncoupling them when an engine is attached. The facts set out in said plea do not show any violation of the rule alleged in the plea. The plea fails to aver that the coupling in which plaintiff was engaged could be made with a stick. The plea fails to aver that the coupling could be made without plaintiff going in between the cars. It does not allege that there was an engine attached to the cars that plaintiff went in between. Because said plea varies said rule of defendant. Because said plea does not show that plaintiff knew, when he went in between the cars, that an engine was attached to other cars approaching the one which plaintiff was to couple, and does not show that plaintiff had knowledge of the fact that it was unnecessary for him to go between said cars to couple the same. Said plea does not aver or show that going in between the cars was obviously dangerous, or that plaintiff knew it was dangerous."

The third replication to the eighth and ninth pleas was as follows: "Plaintiff says that the coupling the plaintiff was making at the time of the injury to him could not be made without going between the cars, and that plaintiff had been ordered by his superior employé to make said coupling, and in order to do so it was necessary for plaintiff to go between the cars."

The defendant demurred to this replication as follows: "It is not averred that the defendant's employé who ordered plaintiff to make said coupling had the right or authority to annul or abrogate the rule prohibiting employés from going between moving cars for the purpose of coupling or uncoupling them, and the fact that it was necessary for plaintiff to go in between said cars for the purpose of making said coupling did not authorize or justify him in the breaking of the rule of defendant prohibiting employés going in between moving cars to couple or uncouple them."

The plaintiff requested the following charges, which were refused by the court: Charge 7: "I charge you, gentlemen of the jury, that the law is this: If the defendant corporation is only charged in the complaint with simple negligence, on account of the negligence of the yard foreman, Porterfield yet if evidence was introduced by the plaintiff, without objection on part of the defendant, showing that defendant was guilty of wanton or willful negligence on account of the acts of Porterfield, and you believe such evidence, then you are warranted under the law in disregarding the variance, and may give a verdict for plaintiff on account of the willful or wanton negligence of said Porterfield." Charge 10: "I charge you, gentlemen of the jury, that if you believe from all the evidence in the case that the car or cars between which Joe Huggins was injured were in a defective condition, and the defendant knew of these defects, and failed or refused to put said car or cars in good condition within a reasonable time, then the defendant is guilty of negligence, and plaintiff is entitled to recover." Charge 11: "I charge you, gentlemen of the jury, that if you believe from all of the evidence in this case that poor Joe Huggins cannot read or write, and that the contract in evidence was not read over to him and fully explained to him, and if you believe further from the evidence that Huggins did not read over said contract in the presence of Walter Huggins, as set up in said contract, then the plaintiff is not bound by the contract, and you may disregard the same in making up your verdict." Charge 12: "I charge you, gentlemen of the jury, that if you believe from all the evidence in this case that Porterfield was standing near Huggins and could see his perilous position, and failed to use ordinary care to stop said cars or signal the engineer, and the injury to plaintiff resulted thereby, then plaintiff may recover, although plaintiff may have been guilty of contributory negligence in going between said cars." Charge 13: "I charge you, gentlemen of the jury, that if you believe from all the evidence in this case that poor Joe Huggins could not read or write, and that the yard foreman, Porterfield, failed to read over to said Huggins rule No. 10 of defendant, in evidence in this case, and failed to fully explain said rule to said Huggins, then said Huggins is not bound by this rule, and you may disregard the same in making up your verdict." Charge 14: "I charge you, gentlemen of the jury, if you believe from all of the evidence in this case that poor Huggins could not read or write, and that he did not read over said rule 10 in the presence of the yard foreman, Porterfield, as set up in said plea, then Huggins would not be bound by said rule, and you may disregard the same." Charge 16: "I charge you, gentlemen of the jury, that if you believe from all the evidence in this case that Joe Huggins gave the engineer, Harris, the proper signal, and the engineer failed to obey said signal, and thereby the plaintiff was injured, then the plaintiff is entitled to recover." Charge 17: "I charge you, gentlemen of the jury, that if you believe from...