Louisville & N.R. Co. v. Watson

• Decision Date: 19 June 1890
• Citation: 8 So. 249,90 Ala. 68
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. WATSON.

8 So. 249

90 Ala. 68

LOUISVILLE & N. R. CO. v. WATSON.

Supreme Court of Alabama

June 19, 1890

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

Hewitt, Walker & Porter, for appellant.

E T. Taliaferro, for appellee.

MCCLELLAN J.

The appellee, plaintiff below, was a brakeman in the employ of the appellant, defendant below. The action is for personal injuries sustained by the plaintiff while he was endeavoring in the line of his employment and duty, to couple a freight-car to the tender of a locomotive belonging to the defendant, and operated by its employes. The evidence is without conflict to the point that, had the plaintiff used a coupling-stick, the injury would not have been suffered. It is also uncontroverted that a rule of the defendant company required the use of these sticks in all cases, and forbade brakemen to couple cars without using them. The evidence is in conflict as to whether plaintiff had knowledge of this rule, and this question was properly submitted to the jury. Notice of the existence of the rule, and a failure to comply with it, in respect to the coupling, in making which the injury was received, constitutes negligence on the part of the plaintiff so contributing to the injury sustained as to afford a complete defense to this action if its gravamen be mere negligence on the part of defendant's servants. Railway Co. v. Propst, 83 Ala. 518, 3 South. Rep. 764. But contributory negligence is not a defense where the defendant's servants knew of the plaintiff's peril, and could have avoided the injury notwithstanding the negligence of the plaintiff, by the use of ordinary care, or where the injury is inflicted with such gross negligence on the part of the defendant's employes as to be the legal equivalent of recklessness, wantonness, or intentional wrong. Tanner v. Railroad Co., 60 Ala. 621; Cook v. Railroad Co., 67 Ala. 533; Railroad Co. v. Crawford, ante, 243; Railroad Co. v. O'Shields, ante, 248.

The case at bar, in our opinion, involves both these principles. The tendencies of the evidence as to controverted facts taken in connection with facts which are undisputed, authorized the jury to reach the following considerations: The cars to be coupled were within 12 inches of each other. Defendant's engineer knew that plaintiff was between them for the purpose of making the coupling; that he had no coupling-stick, and, consequently, that he must make the coupling by hand. He must have known also that the safety of this operation depended upon the tender being moved back so slowly as to afford time for the withdrawal of plaintiff's hand after the link attached to it had been guided into the draw-head of the other car, and before the draw-heads came together. It was entirely practicable for the engineer to have so moved the locomotive and tender as to have conserved plaintiff's safety, despite the negligence of the latter, by gently pulling the lever of the engine, but instead of doing this, he moved the lever suddenly and entirely over, and thereby caused the locomotive and tender to "jump back a foot," so instantaneously as to give the plaintiff no time to withdraw his hand from between the draw-heads, and avert the disaster. We have no hesitancy in holding that these facts, if found to exist by the jury,-and there was evidence either proving or legitimately tending to prove each one of...