Louisville & N.R. Co. v. Binion

• Decision Date: 27 July 1893
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. BINION.

14 So. 619

98 Ala. 570

LOUISVILLE & N. R. CO. v. BINION.

Supreme Court of Alabama

July 27, 1893

Appeal from circuit court, Montgomery county; John P. Hubbard Judge.

Action by E. M. Binion against the Louisville & Nashville Railroad Company to recover damages for injuries sustained while in the employ of defendant. Judgment for plaintiff. Defendant appeals. Reversed.

Upon the introduction of all the evidence, the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence they must find for the defendant." (2) "If the jury believe the evidence of the plaintiff, Binion, they must find for the defendant." (3) "If the jury believe from the evidence that when defendant's engineer called for brakes, that Binion, the plaintiff, applied the brakes on the car from which he fell, and that said brakes performed the service for which they were attached to the car; and that when defendant's engineer called the brakes off, and failed, but found it tight, and in consequence thereof the car was jumping; that he made a second attempt to release the brake, but failed, and that he then put down his lamp, and at a third time attempted to release the brake, and this time succeeded, and in doing so he fell from the car, and received the injuries of which he complains,-then the jury must find for the defendant." (12) "If the jury believe from the evidence that when the plaintiff started to loose the brake he discovered that there was something wrong with the brakes, and that there was danger in attempting to turn the brake loose without help, then, if he failed to ask for help and was injured in consequence thereof, he so far contributed to his own injury as to prevent any recovery in this case and the jury must find for the defendant." (13) "When the plaintiff discovered, as he alleges, that there was something wrong with the brake, and he did not there choose the safer plan of calling aid, but chose the more dangerous plan of releasing the brake, he was guilty of contributory negligence, and cannot recover." (17) "If the jury find from the evidence that plaintiff, in attempting to turn loose the brake after having applied the same, lost his balance and fell from the car, and thereby sustained his injuries, then they must find for the defendant." (19) "If the jury believe from the evidence that when a brake is stuck, that it requires extraordinary care to turn it loose, and if the jury find that the brake in question was stuck when he attempted to turn it loose, and this fact became known to plaintiff when he attempted to loose it, then it became the duty of the plaintiff to use extraordinary care in turning it loose, and if he could have gotten it loose with safety by calling aid for that purpose, it was his duty to have done so; but if he failed to call for help, but attempted, without help, to get the brake loose, and if it was a dangerous thing to do, then in not calling for help, and in attempting to loose the brake by himself, he so far contributed to his own injury as to prevent any recovery in his behalf, and the jury must find for the defendant." (20) "The defendant is not liable, even if the jury believe there was a defect in the brake, unless the jury further find from the evidence that defendant's inspector at Mobile was negligent in not discovering it." (27) "If the plaintiff discovered that the brake which he alleges threw him off the car was defective, and failed to notify the defendant of such defect, he cannot recover unless he knew the defendant was already aware of the defect."

J. M. Falkner and Chas. P. Jones, for appellant.

Chas. Wilkerson, for appellee.

STONE C.J.

Binion, plaintiff in this suit, was brakeman on a freight train of the appellant railroad company. While in the discharge of his duties as brakeman he fell from the top of one of the box cars, and was so injured that he lost his arm. The present suit was instituted under the employers' act, (Code 1886, § 2590,) and seeks to recover damages for the injury suffered. The complaint consists of a single count with amendments. It charges that the injury was caused "by reason of a defect or defects in the ways, works, machinery, and brakes connected with, or used in, the business of said defendant; and plaintiff alleges that the brake or brakes on said railroad car or box car was defective, and plaintiff did not know of said defect in said brake or brakes on said car; that the brake and appliances on and attached to the box car from which plaintiff was thrown were defective, in this: that the dog, ratchet, chain rod, or shoes of said brake were so defective or so worn as to be inoperative and ineffective for the purpose for which they were attached to said car; that the said brakes were defective in some part, so that plaintiff, while engaged in and about his duties as brakeman, and while trying to execute the duties required of him as brakeman in letting down said brakes, was thrown from the top of said car, right arm cut off, and injured as aforesaid, by reason of the defect in said brakes; that said defect in said brakes was not discovered owing to the negligence of the said defendant, or of the parties in the employ or service of the said defendant intrusted with the duty of seeing that the ways, works, and machinery of defendant were in proper condition; that said brake on said car was defective, in this: that the chain thereto attached was worn or broken, and while said brake was set up, and while plaintiff was trying to let down said brake, the said chain broke or gave way; that said defect could have been discovered and fixed by defendant and its employes intrusted with said duty, but they negligently failed to do so, and by reason of said negligence plaintiff was injured as aforesaid. And plaintiff further avers that said brake was defective in this: that the lever attached to the brake beam was broken or worn, so that, when used, it failed to act properly; that said defect was not discovered, or said defect not fixed, owing to the negligence of the defendant, or of some one in the employ of the defendant to whom said duty was intrusted; and by reason of said negligence plaintiff was injured as aforesaid. Plaintiff further avers that he did not know that said defect existed." It is manifest that this complaint makes a good cause of action under section 2590 of the Code of 1886, subdivision 1 of that section; and probably under subdivision 4 also. The defendant pleaded the general issue and contributory negligence, and there were verdict and judgment for the plaintiff. All the questions presented for our consideration were raised by the refusal of the court to give certain charges asked by the defendant.

It cannot be supposed that the court is familiar with the mechanical contrivance known as a brake on a railroad car nor when or how it is liable to become out of repair; nor can we be presumed to know what causes it...