Jones v. Alabama Mineral R. Co.

• Decision Date: 07 June 1895
• Citation: 107 Ala. 400,18 So. 30
• Parties: JONES v. ALABAMA MINERAL R. CO.
• Court: Alabama Supreme Court

18 So. 30

107 Ala. 400

JONES v. ALABAMA MINERAL R. CO.

Supreme Court of Alabama

June 7, 1895

Appeal from circuit court, Shelby county; L. F. Box, Judge.

Action by Mary A. Jones, administratrix, against the Alabama Mineral Railroad Company for the death of her intestate. From a judgment for defendant, plaintiff appeals. Reversed.

This suit was brought by plaintiff, as the administratrix of the estate of John Jones, deceased, to recover damages for the killing of her intestate, which is alleged to have been caused by the negligence of the defendant. The defendant pleaded the general issue, contributory negligence, and the following special plea: "(4) For further answer to said complaint, and to each count thereof, defendant says that plaintiff's intestate contributed proximately to his own injury and death, in this: That plaintiff's intestate was a section hand, and that it was part of his duties to propel the lever car, upon which he was riding, by means of a handle or lever, and that it was his duty to grasp said handle or lever with one or both hands while said car was running; and defendant avers that at the time of the alleged injury and death the said John Jones was riding on the rear end of a hand car, which was moving, and in front of which, and near to it, was another moving hand car, going in the same direction, yet, notwithstanding this, said John Jones failed to grasp or hold to said lever or handle of said car, but stood at the rear end thereof, and was negligently and carelessly looking up and down the river over which said cars were passing, or was looking backwards at said time, without holding onto any part of said car, or to the handle thereof which was an unsafe and dangerous way of crossing said river and trestle on a moving hand car, and but for such negligent conduct of plaintiff's intestate said injury and death would not have happened,-wherefore defendant says that plaintiff's intestate contributed directly and proximately to his own injury and death." The judgment entry recites that the demurrer to special plea No. 4 was overruled, but the demurrer is not set out in the record. Plaintiff filed a replication to the fourth plea, in which she alleged "that her intestate was holding to said handles, and continued to so hold till he was knocked loose by the sudden putting on of the brakes of the car on which he was riding, which said putting on of said brake suddenly had become necessary by reason of the sudden stopping of the car in front, and that immediately after his hands were so knocked loose by said putting on of said brake, and before he had time to recover his hold on said brake, the car he was on ran into the car in front, by reason of which he was thrown out of said car to the ground below, and killed; and she denies that her intestate was guilty of any such contributory negligence as would bar the defendant's liability for his death." Issue was joined upon this replication, and also upon the pleas of the general issue and contributory negligence.

It was shown by the evidence that, at the time of the accident which resulted in the death of the plaintiff's intestate, the deceased was a section hand on the defendant's road, and that one Bill Scott was the section foreman under whose supervision and direction the plaintiff's intestate worked. The plaintiff's testimony tended to show that on the day of the accident the plaintiff's intestate and seven other section hands were on two hand cars; that, just before crossing a bridge upon defendant's road over the Coosa river, the foreman ordered the section hands to run the two hand cars across the bridge very rapidly; that these hand cars were operated by levers, four section hands and the foreman being on the car in front, and the plaintiff's intestate and three others being on the rear car, the plaintiff's intestate being on the rear end of said car that both cars started across the bridge at a very rapid rate of speed, the rear car being behind the front car only from 15 to 25 feet; that just after the cars had passed the iron part of the bridge, and while they were on the trestle portion of the bridge, Scott, the foreman, with his back to the section hands on both of the cars, and without looking to see how close the rear car was to the front car, threw out his hands, as a signal to stop, but that, on account of the position of the foreman, the hands on the rear car could not see the signal; that, as soon as the signal to stop was given, one of the hands on the front car immediately put his foot on the brake, and checked the said car, and that another one of the hands on the front car signaled to the rear car to stop; that, in response to this signal, one of the hands on the rear car put his foot on the brake to stop said rear car and suddenly checked its speed, thereby causing the handle of the lever to be jerked out of the hands of the plaintiff's intestate; that, up to this time, Jones, the plaintiff's intestate, had the handle in his hand pulling the lever; that, before he could recover the handle the car collided with the front car, and that thereby Jones, the plaintiff's intestate, was thrown off of said car to the ground below, about 15 feet, and instantly killed. There was also testimony for the plaintiff tending to show that this was an unusual place for said cars to stop. One of the witnesses for the defendant, who was sitting on the side of the road at the end of the trestle, a short distance from where the plaintiff's intestate was thrown from the car, testified that from his position he could see both of the cars after they left the iron part of the bridge; that, after the cars left the iron portion of the bridge, and came upon the trestle, the plaintiff's intestate did not have hold of the handle of the lever, but was standing erect, looking up and down the river. The testimony of several of the hands who were on the two cars was to the same effect. The defendant's testimony further tended to show that the cars were not going at an unusual rate of speed; that the signal given by the foreman to stop was the signal usually given for that purpose; that there was no violent jerk of the cars when the brakes were applied, and that if the plaintiff's intestate had been holding to the handle of the lever, as it was his duty to do, he would not have been thrown from the car; that the collision was not very violent, and that the application of the brakes, as made in this instance, did not jerk the handle out of the hands of the other men who were pulling the lever, and that neither of the other men on the cars was injured by applying the brakes or by the collision.

The plaintiff requested the court to give the following written charges to the jury: (1) "If the jury believe from the evidence that Bill Scott was section boss, and John Jones was one of the hands in the employ of said Bill Scott, and that said Bill Scott had control of the running of the two hand cars spoken of by the witnesses, and that while crossing the bridge over the Coosa river, in accordance with his orders at a great rate of speed, and that said hand cars were running about 15 or 20 feet apart, and that, just after the two cars had crossed the iron part of the bridge, he gave a signal to the hands on the front cars to check up, without first giving warning to those on the rear car; and if they further believe from the evidence that, at the time said Bill Scott gave a signal to those on the front car, Woods put his foot on the brake, and checked it up; and if they further believe from the evidence that the checking up the front car caused Guy to put his foot on the brake of the second car, and that the handle of the lever was jerked out of John Jones' hands by the putting on the brake by Guy, and that said rear car ran into the front car,...