Louisville & N.R. Co. v. Butler
| Decision Date | 20 April 1911 |
| Parties | LOUISVILLE & N. R. CO. v. BUTLER. |
| Court | Alabama Court of Appeals |
Appeal from City Court of Montgomery; William H. Thomas, Judge.
Action by Thomas N. Butler against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Goodwyn & McIntyre, for appellant.
Hill Hill & Whiting, for appellee.
This is an action by an employé against his employer to recover damages for personal injury. The complaint contained five counts, to all of which demurrers were interposed, which were overruled. Three of the counts--the third, fourth, and fifth--were eliminated by written charges given at the instance of the defendant. The defendant pleaded the general issue, and also three special pleas, all of which were demurred to. The demurrers to two of the special pleas were sustained, and the demurrer to the remaining special plea was overruled.
There was no error in overruling the demurrers to the first and second counts of the complaint. Alabama Great Southern Ry. v. Brock, 161 Ala. 351, 49 So. 453.
Nor was there error in the action of the court in sustaining the demurrers to defendant's second and third pleas. Neither of those pleas averred facts warranting the conclusion that the plaintiff assumed the risks to which he was exposed in consequence of the negligence alleged in the complaint.
There was evidence tending to show that the plaintiff, who was a brakeman and flagman, and at the time was in the caboose in the discharge of his duty, was injured as the result of his being thrown against the front door of the caboose by the sudden stopping of the train, then on a switch track, called the "scale track," in the yards of the defendant in Montgomery. In the first count of the complaint the injury was attributed to the negligence of one S. S. Arn, the engineer in charge of the train. In the second count the injury was attributed to the negligence of one R. L Bartlett, the front brakeman, who acted as a switchman in letting the train into the switch track. There was proof going to show that the switch track upon which the injury occurred would hold about 42 or 43 cars; that the train upon which plaintiff was injured contained 38 or 39 cars; that the train entered this switch track at its southern end at about 3 o'clock in the morning, the train being headed north that at the time of the injury the entire train had got on this switch track, and was then running at the rate of 15 miles an hour, when it was suddenly stopped by the engineer by the emergency application of the brakes; that the usual rate of speed when going into a switch track to leave a train was about 4 miles an hour; that no signal or alarm was given that the brakes were to be applied; that the usual way of stopping the train was by a gradual reduction of the air on the brakes, which brings the train to an easy stop; and that on that occasion the train did not stop in the usual and ordinary way of bringing cars to a stop in the yard, and that there was a train rule against applying the brakes suddenly, unless there was danger of injury to a person or property. The track upon which the alleged injury occurred was straight, and was one of four switch tracks branching from the main line, and running parallel with it. There was also evidence tending to show that it was the duty of R. L. Bartlett, the front brakeman, to let the train into one of the switch tracks which was clear, so that, after the cars were stored on that track, the engine could go on out at the other end of it on a track called the "lead track," which ran to the shops; that, when he turned the switch and let the train into the scale track, there was a car or cars standing on that track at its northern end, obstructing the track, so that the engine could not get out that way; that there was nothing to obstruct his view; and that he threw the switch so as to let the train into the scale track, when he should have let in into the next switch track, called "track 1."
It is insisted by counsel for appellant that it was error to refuse the general affirmative charge requested as to the first count of the complaint; and the line of reasoning adopted in support of this position is, in brief, this: Plaintiff's falling against the door of the car was due to the sudden stopping of the train by the emergency application of the brakes. Under the evidence, the only negligence with which the engineer could be charged was in running the train, in going into the switch track, at an unusual and unnecessary rate of speed. But the plaintiff can derive no benefit from the engineer's breach of duty in this regard, because the rate of speed was not the proximate cause of the plaintiff's injury. The engineer, on discovering an obstruction on the switch track, was warranted in making the emergency application of the brakes, in order to prevent a collision and a consequent injury to persons or property. That act did not constitute negligence on his part, as he was justified in assuming, until informed or notified that such was not the case, that there had been a due performance of the duty imposed upon another employé of letting the train into a switch track which was clear of any obstruction. This line of argument leaves out of view some facts in evidence which had a bearing upon the question whether the engineer was negligent in getting his train to the place at which it became necessary to make a sudden stop to avoid a collision. The switch track which the train went into was straight. There were lights in the yard. There was evidence tending to show that there was nothing to obstruct the...
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