Louisville & N.R. Co. v. Baker

• Decision Date: 23 April 1895
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. BAKER.

17 So. 452

106 Ala. 624

LOUISVILLE & N. R. CO. v. BAKER.

Supreme Court of Alabama

April 23, 1895

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

Action by J. H. Baker against the Louisville & Nashville Railroad Company for personal injuries. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This was an action on the case, brought by the appellee, John H Baker, under the employers' liability act, against the Louisville & Nashville Railroad Company, to recover for personal injuries alleged to have been caused to plaintiff who was an employé of the defendant, while uncoupling cars constituting a part of the train on the road of the defendant. As the cause was presented to the jury, it contained three counts; the first count in the complaint as originally filed having been withdrawn. The second count averred in general terms the duty of the defendant to carefully manage and operate its train while plaintiff was between the cars, so as to avoid injury to him, and that this duty was neglected, and that such neglect caused the injury to plaintiff. The third count attributed the injury to the fact that the engineer in charge of the locomotive attached to the train carelessly and negligently put the train in motion, whereby the injury complained of was inflicted. The fourth attributed the injury complained of to the defective condition of one of the cars which the plaintiff was attempting to uncouple, in that the drawhead was in a defective condition "by reason of the absence of the usual and proper appliances to prevent the drawhead of said car from giving way and being pushed under said car," and that this defect had not been discovered or remedied by reason of the negligence of the defendant. Defendant pleaded the general issue and contributory negligence. It was shown by the evidence that the plaintiff was a brakeman in the employ of the defendant, working on a freight train; that on January 21, 1892, while so employed, it became his duty, at Ishkooda, a station on the defendant's road, to go between two cars of the freight train upon which he was working, to uncouple them; and that while he was between the cars, and grasping the coupling pin, the cars were suddenly pushed forward by the engine, the drawhead gave way, and his hand was caught between the pin and the car and crushed. The testimony for the plaintiff tended to show that at the time of the accident the engine was on a curve in the track of the defendant, and the engineer was so situated that nothing obstructed his full view of plaintiff and the cars which plaintiff went in between to uncouple. The plaintiff, as a witness in his own behalf, testified that as he left the engine to go to the front of it he told the engineer to hold it at a standstill, and that just as he went between the cars he signaled the engineer to "hold up," and that he went between the cars in full view of the engineer. The evidence for the plaintiff also tended to show that the drawhead gave way by reason of the absence of the back "follow plate," which keeps the drawhead from shoving back. At the time of the accident, Galligher and Harrington were the two other brakemen on the freight train. The evidence for the plaintiff further tended to show that after the engine stopped, and just before the plaintiff went in between the cars to uncouple them, there was no signal given by any one to move the train. Harrington testified that he did not give any signal, and saw no one else give it. As relevant to the condition of the car, and the probable time it had been out of order, the plaintiff introduced one Taylor as a witness in his behalf, who testified that he was a car inspector in the employ of the defendant; that on the next day after the injury, or the day following, a car of the same description as the one shown to have inflicted the injury was brought into the shops of the defendant at Bessemer, a few miles from the place of the injury, from the direction of Ishkooda; that said car was a "crippled car"; that the back follow plate was gone from it, and that dents and bruises on the "deadwoods" indicated that the drawhead had been jamming against it for some time. The defendant objected to the testimony of the witness Taylor and moved to exclude it from the jury, on the ground that it was not connected with the car that caused the injury. The court overruled the objection, and the defendant excepted. The testimony for the defendant was in conflict with that of the plaintiff in reference to the giving of signals. The engineer, who was in charge of the engine of the train upon which the plaintiff was a brakeman, testified that he did not see Baker go in between the cars to make the uncoupling that caused his injury, and that Baker did not give him a signal at that time to stand still; and that he got a signal from either Galligher or Harrington to come ahead, and give slack before he moved the engine; and that in obedience to that signal he moved the engine seven or eight feet. There was also testimony introduced in behalf of the defendant tending to show that the car inspectors inspected the cars composing the train on which the injury was caused before the train left the yard of the defendant, on the morning of the accident; that they "looked at the drawheads, both top and bottom, and found no defects in them."

Among the charges given by the court at the request of the plaintiff was the following: (2) "It was the duty of the defendant to exercise reasonable care to have and to keep its cars in proper condition, so that they could be uncoupled with reasonable safety; and plaintiff had a right to assume unless he had information to the contrary, that defendant had performed its duty in this respect." The defendant separately excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges requested by it: (1) "That if the jury believe from the evidence that while the plaintiff was between the cars for the purpose of uncoupling them another employé of the defendant gave the engineer of defendant a signal to let the slack on, and the engineer, in obedience to such signal, moved his engine and train in a proper way and in...