Louisville & N.R. Co. v. Elliott

• Decision Date: 16 December 1909
• Citation: 166 Ala. 419,52 So. 28
• Parties: LOUISVILLE & N. R. CO. v. ELLIOTT.
• Court: Alabama Supreme Court

52 So. 28

166 Ala. 419

LOUISVILLE & N. R. CO. v. ELLIOTT.

Supreme Court of Alabama

December 16, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Steve Elliott against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The case made by the complaint is that plaintiff was an employé of the Louisville & Nashville Railroad Company as brakeman on a freight train, and that while the train was passing through the yards another car or obstruction had been left so close to the track that the car on which plaintiff was engaged in his employment "sidewiped" or struck the car or other obstruction, causing the injuries complained of. The allegations of the fifth count as to negligence are that his injuries were proximately caused by negligence of some person in the service or employment of defendant, who had charge or control of the car upon a railway of the defendant; that said negligence consisted in this: That said person negligently allowed said car to be or remain so close to the track of the railway over which the train was running upon which plaintiff was riding that it would not admit of the passage of his body between said car and said train while he was riding as aforesaid without coming in contact therewith, and because thereof, while he was riding as aforesaid, his body did come in contact with said standing car, proximately causing his injuries as aforesaid. It is also alleged that the person in the service or employment of defendant who had charge or control of the car was unknown to plaintiff.

The defenses were contributory negligence; the second count alleging it to be that plaintiff negligently rode in an improper position on the side of the car, without necessity therefor, when he passed the car which struck him. The third plea alleged that he negligently failed to see that the car that struck him as he was passing it was too close to clear him as he was riding on the side of another car. The fourth plea alleges the negligence to be that he negligently failed to escape or avoid contact with the car that struck him after he became aware, or after he would by the exercise of reasonable diligence have been aware, of the proximity of the car that struck him to the car he was riding on.

The following charges were given at the request of the plaintiff (1) "The court charges the jury that, if they find for the plaintiff, they should give him such damages as will compensate him for all the earnings which the evidence shows he has lost by his injuries, as well as all the earnings which the evidence reasonably shows he will lose on account of his injuries in the future, if the jury are reasonably satisfied that he will lose earnings in the future on account of his injuries." (2) "The court charges the jury that, if they find for the plaintiff they should award him such damages as will compensate him for the pain and suffering which he has undergone, and will in future undergo on account of his injuries, if the jury are reasonably satisfied from the evidence that he has been caused suffering, and will in future be caused to suffer pain, on account of his injuries."

The following charges were refused to the defendant: (1) and (2) General affirmative charge. (3) "Unless the jury believe from the evidence with reasonable certainty that the car was placed where it was when plaintiff was injured by some one who had charge or control of a car on defendant's railway, the jury cannot find for the plaintiff under the fifth count of the complaint." (4) "If the jury believe from the evidence that the plaintiff would by the exercise of reasonable diligence have discovered that the car which struck him would not clear him as he passed it in time by the exercise of ordinary diligence to have escaped being struck by it, the jury must find for the defendant." (5) "If the jury believe from the evidence that the plaintiff by reasonable diligence could have seen the car which struck him in time to have avoided being struck by it and failed to see and avoid being struck by it, the jury must find for the defendant." (8) "If the jury believe from the evidence that the plaintiff negligently failed to look out for and to discover the car that struck him, and that such negligent failure on his part proximately contributed to his injury, the jury must find for the defendant." (9) "If the jury are unable to determine from the evidence with reasonable certainty who left the car where it was when plaintiff was struck by it the jury can find for the defendant upon neither the fourth nor the fifth counts." (10) Same as 9, except requiring the finding for the defendant. (11) "If the evidence as to whether the car that struck plaintiff was left where it was when plaintiff was struck by it by a person in defendant's service intrusted with superintendence whilst in the exercise of superintendence, or by a person in defendant's service in charge or control of the car on its railway, or by a mere fellow servant of the plaintiff, is in equipoise, and the jury are unable to determine from it with reasonable certainty which one of the three so left the car where it struck the plaintiff, the jury must find for the defendant." (12) "If the jury believe from the evidence that the plaintiff at the time he was injured was riding on the side of a moving car, when he could just as well have performed his duty while riding on top of the car instead of on the side of it, and if the jury believe from the evidence that it was safer to ride on the top than on the side of the car, the jury must find for the defendant." (13) "The plaintiff was required by the law to select a safer way of riding the cars, if there was a safer way than riding on the side of the car, provided the plaintiff could reasonably have performed the duties he was required to perform while riding in such safer way." (15) "If the jury believe from the evidence that the plaintiff at the time he was injured was riding on the side of a moving car without necessity therefor, and that he should have...