Louisville & N.R. Co. v. Hurt

• Decision Date: 02 May 1893
• Citation: 13 So. 130,101 Ala. 34
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. HURT.

13 So. 130

101 Ala. 34

LOUISVILLE & N. R. CO. v. HURT.

Supreme Court of Alabama

May 2, 1893

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

Action by William Hurt against the Louisville & Nashville Railroad Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

The complaint originally contained but one count, but two others were added by way of amendment. The second count was afterwards withdrawn. The negligence charged in each of the remaining counts was that of a person in charge of a switch in opening the same and failing to close it, so that the engine upon which the plaintiff was the engineer ran through the switch, and collided with a train standing on another track. The last count, which is numbered 3, also avers that the employe of the defendant who was in charge of said switch, after knowledge of the plaintiff's danger, failed to exercise proper diligence to avert it. The defendant filed four pleas, pleading the general issue and contributory negligence, and the plaintiff took issue on each of the four pleas. The facts upon which the case was tried, and as gleaned from the bill of exceptions, are as follows: On July 23, 1890, the plaintiff was in the employ of the defendant as an engineer on a switch engine, and was in the yard of the defendant at Birmingham, Ala., his duty being making up trains and distributing cars. The freight train numbered 110 had come in ahead of freight train No. 74, and was standing on the main line of the defendant, the engine having gone to the roundhouse. It was the plaintiff's duty to clear the main line of train 110 before freight train 74 came in, so that No. 74 could occupy the main line. No. 74, however, came in before 110 was switched off the main line. The assistant yard master of the defendant, who was the plaintiff's superior, gave the signal to plaintiff to signal the incoming train to stop at the switch at Valley Creek crossing, which was done, and train No. 74 stopped there. The plaintiff then went on the main line with the switch engine, and coupled onto the cars which comprised train 110 for the purpose of taking them off the main line; and he then backed down the main line. As the plaintiff was backing his train, and when he had reached a point on the main line between the Alabama Great Southern crossing and the Valley Creek switch, he was signaled by the assistant yard master to go on down the main line instead of going on the side track, as had been his custom. One Hickerson, who was a brakeman on train 74, and whose duty it was to throw the switch, as soon as his train had stopped, ran to the switch, and threw it so as to connect with the north main line instead of the south. This was done but a few minutes before the plaintiff passed with his train intending to go down the south main line, as directed by the assistant yard master; but, on account of the switch being thrown by the switchman Hickerson, instead of going down the main line as he was directed and intended, his train was diverted to the side track on which freight train 74 was standing, and the two trains collided. Just before the collision, and when the plaintiff saw that it was inevitable he reversed his engine, sanded the track, and did all that he could do to stop his train, and then leaped from the engine. He fell, his back striking against the switch stand, and he received the injuries for which he now brings this action.

The plaintiff testified that when he got to the Alabama Great Southern crossing he looked at the Valley Creek switch, and it showed "white," which was an indication that he could proceed with safety along the main line past that switch. The plaintiff admitted that on the former trial he had testified that he did not look at the Valley Creek switch after leaving Fourteenth street, and accounted for the conflict of the two statements by stating that "he was weak and nervous on the former trial." He also stated that before reaching the Alabama Great Southern crossing he told his fireman to look back, and his fireman told him "All right;" to back up; and that it was after this that the assistant yard master gave the signal to go on down the south main line, so as to clear the switch at Valley Creek. At the time the train went through Valley Creek switch, which resulted in the injury complained of, the plaintiff testified that it was running between 5 and 6 miles an hour, while the witness Hickerson testified that it was running between 16 and 17 miles an hour. The switchman Hickerson, who was a witness introduced by the defendant testified that after he had thrown the switch for the north-bound main line he first discovered the engine on which the plaintiff was running when it was only about a car length from the switch, and that this was the first knowledge he had of the switch engine coming up from Fourteenth street; that as soon as he saw it he signaled to the switch engineer, and started to the switch at the same time, to throw it the other way, but that he did not have time to do it. He testified that the last time he noticed the switch engine, just before he saw it the car's length from the switch, it was standing at Fourteenth street, and that after he threw the switch he stood with his back to the north, the direction from which the engine was coming, waiting for the train to come on towards the switch, but he did not hear the engine as it approached because of the noise of the furnaces and mills around where he was standing.

The first assignment of error was based on the court's overruling the defendant's objection to the following question, propounded to the witness Will Hill, who had testified that he was a fireman on the engine with the plaintiff at the time of the accident: "Didn't you testify on your former examination that: 'I looked back as we were coming to the crossing. I told him to look back. There was a train coming. Then I looked back and told him it was all right, and I went down and commenced throwing coal. The switches were all set for the south-bound track. I saw they were set for the south-bound track when we crossed the A. G. S. crossing, and I could not say that any of those switches were changed after we crossed the Alabama Great Southern crossing."' The defendant objected to this evidence, because it was hearsay, and because the plaintiff could not impeach his own witness. The court overruled the objection, and stated that it would permit the question to be asked and answered for the purpose of refreshing the memory of the witness. To this ruling of the court the defendant duly excepted. The second, third, and fourth assignments of error present the same questions as the above. The sixth assignment of error was the admission, against the appellant's objection and exception, of the tables of mortality in evidence to show the plaintiff's expectancy of life. All the other assignments of error are directed to the court's giving and refusing to give several charges asked, and the court's overruling the defendant's motion for a new trial.

The court, in its oral charge, instructed the jury as follows "So you will say whether Hurt was guilty of negligence. Taking into consideration the rules of the company, such as were brought to his knowledge, and also the circumstances generally surrounding him, to see whether he ought to have run the train of which he was engineer at a slower rate of speed, or to have stopped it, or to have kept a better lookout; and if you should find that he was negligent in any of these matters, and that his own negligence brought about his own injury, or helped to do it proximately, then he must not recover, even though the switchman was negligent, unless you believe the act of the switchman was willful, wanton, or reckless; not merely negligent,-something worse." "You will consider whether you find that the plaintiff was negligent in failing to keep a lookout, and running his trains too fast across that switch under the circumstances and you will also consider whether Hickerson was conscious of the danger which threatened the plaintiff by reason of the switch being thrown wrong, and whether, being so conscious of it, he could have turned the switch, so as to save the plaintiff and the plaintiff's train, and prevent the collision, and whether he had time to do it, or whether he willfully and with reckless disregard to the consequences allowed the switch to remain open, and let the plaintiff's train run into the other train; and in such case, if you find that the plaintiff did what he could to prevent the injury to himself after he saw his danger, he may recover." The defendant excepted to each of these portions of the court's general charge, and also separately excepted to the court's refusal to give each of the following written charges requested by it, among many others: (5) "Unless the jury believe that the witness Hickerson was so negligent that his conduct was the legal and moral equivalent of willful or intentional wrong, they must find for the defendant, if they believe the plaintiff was guilty of negligence which proximately contributed to his injury." (17) "If the jury believe that the plaintiff has contradicted his testimony given on the former trial of this cause in any material particular, they are authorized to consider this as an impeachment of the plaintiff's testimony." (21) "If the jury believe that the plaintiff testified on the former trial of this cause that he didn't see how the switch was after he left Fourteenth street, and that he testified on this trial that he saw that it was right for the south main line at or about the Alabama Great Southern crossing, they may consider these contradictory statements as an impeachment of the plaintiff." (22) "If the jury believe that the...