Kansas City, M. & B.R. Co. v. Crocker

• Decision Date: 23 June 1892
• Citation: 95 Ala. 412,11 So. 262
• Court: Alabama Supreme Court
• Parties: KANSAS CITY, M. & B. R. CO. v. CROCKER.

11 So. 262

95 Ala. 412

KANSAS CITY, M. & B. R. CO. v. CROCKER.

Supreme Court of Alabama

June 23, 1892

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by Samuel Crocker, by his next friend, against the Kansas City, Memphis & Birmingham Railroad Company, for personal injury to plaintiff, caused by the negligence of one of defendant's employes. Verdict for $6,000, and judgment for plaintiff. Defendant appeals. Affirmed.

There were two counts in the complaint. The first count alleges that Charles West, the foreman of a section on defendant's railroad, had superintendence of several laborers in the employment of defendant, including the plaintiff, and had superintendence of a car propelled by hand, called a "lever car," used by defendant under the superintendence of the foreman, in repairing and keeping up its track, and that on the date of the alleged injury, while the car, under the superintendence of the foreman, was being propelled at a rapid rate of speed down a long a steep grade on defendant's railway, the foreman negligently and recklessly applied the brakes to the wheels of the car with too much force and suddenness, and negligently checked its speed suddenly and without warning whereby plaintiff, who was standing on the front end, was violently thrown off the car and injured. The second count alleges that Charles West, the section foreman, was intrusted by defendant with the charge of a car propelled by hand on the track of defendant's railway, commonly called a "lever car;" that plaintiff was in the employment of the defendant as a laborer in the gang or crew of the foreman; and that while the car was being propelled in the manner described in the first count the foreman negligently carelessly, and recklessly applied the brakes to the wheels of the car with great force and suddenness, without warning or signal, whereby the speed of the car was suddenly and violently checked, and thereby the plaintiff was violently thrown off the car and injured. The cause of action in both counts is laid under the fifth subdivision of section 2590 of the Code. The defendant filed three pleas to the complaint but each of them presents nothing more than the general issue, and issue was joined on these pleas. The evidence showed without contradiction that plaintiff, at the time of the alleged injury, was an employee of appellant, and working as a section hand under the direction of one West, who was appellant's section foreman of the section on which plaintiff was working; that on the 7th day of January, 1890 while going to a certain point on the section in a hand or lever car propelled by the section hands by means of a lever, and while running from 5 to 10 miles an hour, the lever car was checked by West by the application of a brake, and the plaintiff fell off, and was injured to such an extent as necessitated the amputation of his leg. The car was checked without giving any warning. The plaintiff was standing within a few inches of the outer edge and in the front end of the car, riding backwards, and he was assisting in propelling the car by means of the lever. The car was flat, and had no side planks. The foreman was in the middle and on the right side of the car, near the brake, and applied the brake himself. The car was checked by means of the brake from 200 to 270 yards from a curve in the track. The lever was operated by the employes' taking hold of it, and working it up and down. When the lever was up, it was about as high as a man's breast, and when down it was about as low as his hips. The employe would have to stoop a little to hold it while it was down. At the time of the accident the lever car was going down grade, and plaintiff was taking hold of the lever as it came up, and letting it go as it went down. At the time the car was checked, plaintiff did not have hold of the lever, and there was nothing for him to hold to, standing where he was, except the lever. Including the plaintiff, there were six persons working the lever, and none of these were thrown off or jolted except the plaintiff; and one of plaintiff's witnesses did not know that the brake had been applied until after he saw plaintiff falling. There was no evidence tending to show that the section foreman knew that plaintiff did not have hold of the lever when he applied the brake, and the section foreman himself said that he did not see plaintiff at the time, and when he applied the brake did not know that the plaintiff did not have hold of the handle of the lever. The evidence of the plaintiff tended to show that the lever car was checked suddenly, while that of defendant and the colored witnesses of the plaintiff tended to show that it was checked gradually. The uncontradicted testimony tended further to show that the section foreman checked the lever car by means of the brake in order to be able to stop the car without any trouble when it reached a point where he wanted to take it off, provided he heard a train approaching. It was checked in the ordinary way, but no warning was given before it was checked. The uncontradicted evidence further showed that when the lever car was running at the rate of from 5 to 10 miles an hour, or less, the persons propelling the car could hold to the handle of the lever when it was down as well as when it was up, and that the other section men on the lever car were holding on both when it was up and when it was down at the time of the accident. The testimony of plaintiff tended to show that the benefit he would have derived from being warned was that he could have caught hold of the handle of the lever before the brake was applied. The defendant, on cross-examination of one of plaintiff's witnesses, propounded this question to him. "Now, suppose you were going along fast in your lever car, and you were to hear an extra train coming close by. Wouldn't it be the duty of the section foreman and section hands to get off that lever car as quick as they could, and get the lever car off the track?" The plaintiff objected. The defendant, on cross-examination of one of plaintiff's witnesses, propounded this question to the witness: "Don't you know that it is dangerous for a man to be riding on one of these lever cars, standing up, with his back in the direction he was going,-the car going at the rate of eight or ten miles an hour,-and not holding on to something?" The court sustained an objection of plaintiff to this question. The defendant on cross-examination propounded this question to one of the plaintiff's witnesses: "Isn't it safer for a man to hold on to the handles, when a car is not going too fast for him, than to stand without holding on to anything?" The court sustained an objection of plaintiff to this question. Before the court sustained this objection to this question the witness answered: "It is safer for a man to hold to the handles, when a car is not going too fast for him, than to stand without holding to anything." This answer was excluded by the court upon motion of the plaintiff, the defendant excepted thereto, and this ruling of the court is also one of the errors assigned in the record. The defendant propounded the following question on cross-examination to plaintiff's witness: "If a man is standing without holding on to anything, is he not more liable to fall off than when he is holding on to the handles?" The court sustained an objection of plaintiff to this question. The defendant propounded this question to the section foreman, West: "Is it your duty, when you approach a curve on that track with a lever car, to stop and listen, or not?" The court sustained an objection to this question by plaintiff.

Upon the introduction of all the evidence in the case the court at the request of the plaintiff, in writing, gave the following charges: (1) "That it is the duty of the jury to weigh the evidence, and not merely to count the witnesses." (2) "If the jury believe from the evidence that West knew that the persons operating the hand car were at times in the habit of turning loose the lever when the car was running down grade, and that at a place where they were not accustomed to stop be applied the brake so as to check with unnecessary and dangerous suddenness the speed of the car when it was so running, without notice to the persons operating the same, or without looking to see that such persons were holding to the lever, then such act of West was negligence." (3) "The court leaves it to the jury to say whether under the evidence in this case the plaintiff was guilty of contributory negligence." The defendant separately excepted to the giving of each of these charges, and also excepted to the court's refusal to give each of the following charges asked by him: (1) "If you believe the evidence, you must find for the defendant." (2) "If the jury believe the evidence, they must find for the defendant under the first count of the complaint." (3) "if you believe the evidence, you must find for the defendant under the second count of the complaint." (4) "That it is the duty of the jury to reconcile conflicting testimony, and they must say, if they can determine, who has told the truth; and if they cannot say who has told the truth, then they must find the facts so far as there is conflict, not proven in the case, and if such facts are necessary to be proven in order for plaintiff to recover, they must find for the defendant." (6) "If it was the custom for the section foreman, West, to give no notice of the application of the brake before applying it when he was near enough to apply the brake himself; that this custom was known or should have been known to the plaintiff,-then it was not negligence for the section foreman to fail to give such notice when he applied the brake just before the plaintiff was...