Louisville & N.R. Co. v. Boland

• Decision Date: 03 November 1892
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. BOLAND.

11 So. 667

96 Ala. 626

LOUISVILLE & N. R. CO. v. BOLAND.

Supreme Court of Alabama

November 3, 1892

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

Action by William H. Boland against the Louisville & Nashville Railroad Company for damages. Judgment for plaintiff. Defendant appeals. Reversed.

The court, at the request of the plaintiff, gave the following written charge to the jury: "The court charges the jury that it is for the jury to determine from all the evidence whether the defendant was negligent, and whether the injury to plaintiff resulted from such negligence." The defendant excepted to the giving of this charge, and also duly excepted to the court's refusal to give the general affirmative charge in its behalf. Upon the verdict and judgment being rendered for the plaintiff, the defendant moved the court to set aside the judgment and verdict, and to grant it a new trial upon the following grounds: "(1) The damages are excessive; (2) the verdict is contrary to the evidence, and against the weight of the evidence; (3) the verdict is contrary to the law and the evidence; (4) the verdict is contrary to the law; (5) the court erred in its charge to the jury; (6) the verdict was contrary to the charge of the court and evidence in the case."

Hewitt, Walker & Porter, for appellant.

Leonidas C. Dickey, J. F. Gillespie, and Tolliaferro & Houghton, for appellee.

THORINGTON J.

Appellee brought suit against the Louisville & Nashville Railroad Company to recover damages for an injury sustained by him while in the company's employment as a brakeman. At the time of his employment he was about 26 years of age, and without experience in the railroad business. When the injury complained of was received he had been acting as a brakeman on construction trains on appellant's mineral road for about four weeks, and during that time had exhibited skill and dexterity in coupling cars. At the beginning of his employment he was instructed generally that railroading was a dangerous employment, and that coupling cars was specially dangerous, and to be done with great care and particularity. On being transferred from the first construction train, on which he had been employed for about two weeks, to another train of the same class, he was again instructed by his conductor that "coupling cars was a very dangerous business, and that he should use great care in making couplings." He was also informed that "there were cars on the company's line of railroad with different styles of couplings, and that he must be very particular and careful in coupling cars." After appellee had been in service as such brakeman for three or four weeks, he was called upon to couple two cars having double deadwoods or buffers, and which cars belonged to another system of railway, but were then being hauled over appellant's road. These double deadwoods or buffers are horizontal timbers at the end of the car projecting, one on each side of the drawhead, the latter extending three or four inches beyond the deadwoods. In coupling, the drawhead yields to the impact of the two cars and the deadwoods or buffers of the opposing cars coming together arrest the force of the blow. The coupling is done by holding the coupling pin with one hand above the deadwoods or buffers, while the link is guided by the other hand underneath the deadwood or buffer. Coupling cars of this kind is more dangerous, according to the proof, than coupling those without buffers or deadwoods. Appellee had never seen a car with a coupling of this pattern, although the company frequently used such cars on its line; that is, hauled cars of that kind for other railroads. The testimony for appellee showed that he was compelled to make the coupling in a hurry, and that the cars came together quickly, and with force, and that he did not observe that the construction of the cars or their coupling was different from those to which he had been accustomed. On the other hand, appellant's testimony shows that appellee was not hurried in making the coupling, that the deadwoods or buffers were plainly open to his observation, and that the increased danger was patent. Appellee undertook to make the coupling as he would have done with ordinary cars, and his arm was caught and crushed between the buffers, causing permanent injury. The negligence alleged, and on which the right of recovery is based, is the negligence of the company in hauling on its line the cars of another company, so constructed as to render coupling more hazardous than it is with appellant's cars, and in not instructing appellee specially as to the increased danger in coupling cars with double deadwoods or buffers.

The questions reserved for review in this court are the exceptions of appellant to the charge given by the court at the instance of appellee, the refusal of the court to give the general charge for appellant, and the denial by the court of appellant's motion for a new trial. The ruling of the court upon the charges is involved in the correctness of its ruling in denying the motion for a new trial, and we shall address ourselves to the determination of that question without specially noticing the others. It is the duty of the master to furnish his employes, for use in the prosecution of his business, safe and suitable machinery, and to keep the same in good repair. But this duty is not an absolute one and is discharged when the master exercises reasonable care and prudence in selecting machinery and appliances for the servant's use, in view of the nature of the business or employment and the incidental hazards. No rule of law imposes upon the master the duty to select the latest and most approved machinery, but only such as is suitable for the purpose for which it is employed; and in selecting which of several styles of machinery or apparatus he will use in his business the discretion of the master is absolute, subject alone to the exercise of reasonable care and prudence. Kehler v. Schwenk, (Pa. Sup.) 22 A. 910, 13 Lawy. Rep. Ann. 374, and notes; Wood, Mast. & S. §§ 331, 332; Smoot v. Railway Co., 67 Ala. 13. There is an entire absence of proof showing that the couplings or double buffers to the cars which caused the injury to appellee were defective, or out of repair, or that they were discarded or prohibited on well-regulated railways, or that they were unsuited to the service; but it does appear that they are a style of coupling used on one at least of the great railway systems of this country, and that cars so constructed were frequently hauled or transported over appellant's road. Nor does appellee base the charge of negligence on the fact of the coupling to said cars being defective or out of repair, or unsuited to the business, but on the alleged fact that cars with that style of coupling are more dangerous to couple than those belonging to appellant, and the testimony sustains that charge. The question, therefore, is presented whether it is negligence per se in a railway company to receive from other companies, and haul over its own track, cars having different styles of coupling from those in use on its own cars, and which increase the hazard of coupling. It may be said it is a matter of common knowledge that the demands and exigencies of commerce require in the transportation of freight that the cars of one company shall be hauled over the road of another, and that, in order to meet this demand, the gauge of the tracks of the great trunk lines have been made uniform. This necessity has been recognized and provided for by statute in many of the states, including Alabama. Section 21 of article 14 of the constitution, and section 1165 of the Code of 1886, carrying the same into effect, make it mandatory on railroads, when required, to transport or draw over its line the passengers, freight, or cars of any intersecting or connecting road, on reasonable terms, provided such cars are adapted to the gauge of its track, are sufficiently strong, and otherwise in proper condition for safe transportation. Probably in no other matter pertaining to the machinery or apparatus used in the railroad business has human ingenuity and invention been so frequently and constantly taxed as in the efforts to improve car couplings, and lessen the danger of that particular employment, which, under the best conditions, is known to be attended with much hazard. As a result of this, the taste and judgment of the managers of railroads in selecting styles or patterns of coupling, it has been said, have been as varied as the ingenuity of others in their invention, and...