Louisville & N.R. Co. v. Orr

• Decision Date: 17 November 1890
• Citation: 8 So. 360,91 Ala. 548
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. ORR.

8 So. 360

91 Ala. 548

LOUISVILLE & N. R. CO. v. ORR.

Supreme Court of Alabama

November 17, 1890

Appeal from city court of Decatur; W. H. SIMPSON, Judge.

This action was brought by the appellee, Horace Orr, as the administrator of Henry Griffin, deceased, who was an employe of the defendant railroad company; and seeks to recover damages for injuries sustained by the alleged wrongful act of the defendant, resulting in the death of said Henry Griffin. The defendant pleaded the general issue, and contributory negligence, and upon these pleas issue was joined. The facts as gathered from the bill of exceptions, are substantially that the plaintiff's intestate was employed as a brakeman by the defendant, and was working in that capacity when the accident occurred; that, as such brakeman, he had been in the employ of the road for six months, and had been examined on the rules of the defendant; that it was his duty, among other things, to assist in the switching of the cars; that, on the day when he sustained his injuries, he was assisting a fellow-brakeman in coupling and switching some freight-cars which were on a side track at one of the stations on the line of defendant's road; that one of the cars thus being switched was loaded with rock, the other was partially loaded with rock, and the other two were empty; that the said cars were what was known as "gondolas," made specially for hauling coal, rock, and such things; that at either end of these gondolas there is a gate about three feet high three inches thick and the width of the car; that it was the custom of the brakemen to let down these gates or doors when the cars were empty, but there was no rule of the road which required that they should be so let down; that when the cars were loaded with rock or other heavy substance, the weight thereof pulled to and fastened these gates or doors; that there were hooks on the outside of these gates which were used in fastening them, but these hooks could not be seen by any one from within the car; that on the occasion of the accident, which resulted in the death of plaintiff's intestate, after the cars had been coupled together and coupled to the engine, the decedent jumped up on the car nearest the engine, and started to the rear of the cars which were being switched; that, when he reached the gondola that was only partially loaded with rock, he jumped from the rock onto the gate, intending to jump from this gate to the gate of the other car loaded with rock; that, as he jumped upon the first gate, it fell back, and he fell between the cars, and was run over and crushed by the other car, thereby sustaining such injuries as caused his death. It was further shown that the hooks to the gate which gave way with plaintiff's intestate were not fastened, and that he could not see them from where he jumped from the rock; and further, that the floor of the car protruded beyond the gate of these cars about six or eight inches, and there was, therefore, plenty of room for him to step over the gate onto this little platform made by the floor thus jutting out beyond the gate, and from this little platform to the similar platform of the connected car. On the examination of a certain witness the plaintiff introduced in evidence, against the objection and exception of defendant, certain of the rules of the defendant company, which were as follows: "Section 133 of the rules of said company for the government of the transportation department. The general direction and government of a train from the time of receiving its passengers or freight, until it arrives at its destination, is vested in the conductor. He is held responsible for its safe and proper conduct, and all men employed on the train are required to yield a willing obedience to the proper orders." "149. Freight conductors are required to do their work thoroughly at stations, bearing in mind that trains are run to do the business of the road, and not merely to make time over it. Trains, however, are expected to run with regularity and as nearly on time as the prompt performance of the rules will permit. 150. The proper place for a freight conductor, while his train is in motion, is in the deck of his caboose, if it have one. If the caboose should not be provided with a deck, he will then maintain such other position, either on top or inside, as will give him a full view of his train, and enable him to see that his brakemen properly perform their duties, and to know that his flagman goes out promptly, when necessary, to flag. He must also keep a sharp lookout, especially when rounding curves. He should not ride in the engine, except in cases of emergency. In cold or inclement weather, conductors will require their flagman to relieve the outside brakeman; but under no circumstances shall they allow more than one of their men in their caboose at any time while their trains are in motion. The front brakeman may, in such weather, ride on the engine, occasionally, but, while the train is descending heavy grades or approaching stations, all brakemen must be at their several posts on the top of the train. A brakeman, when riding on the engine, must obey the engineer's instructions as to the proper time to run to his post." "155. They must not take cars that are, in their judgment, improperly or too heavily loaded, or that are not in a condition to run safely." The defendant then offered in evidence section 309 of said rules, under the heading of "Rules for car inspectors." This rule was as follows: "They must inspect all cars passing their stations, and make such repairs as are necessary, giving special attention to cars running in passenger trains."

On the examination of Horace Price, the conductor on the train on which plaintiff's intestate was braking when injured, as a witness for the defendant, the defendant offered to introduce in evidence section 130 of the rules of defendant road, which was as follows: "All persons entering or remaining in the service of the company are warned that, in accepting or retaining employment, they must assume the ordinary risks attending it. Each employe is expected and requested and required to look after and be responsible for his own safety, as well as to exercise the utmost caution to avoid injury to his fellows, especially in the switching of cars, and in all movements of trains. Stepping upon the front of approaching engines, jumping on or off trains or engines moving at a high rate of speed, getting between cars while in motion to uncouple them, and all similar imprudences are dangerous, and in violation of duty. Employes of every grade are warned to see for themselves, before using them, that the machinery or tools which they are expected to use are in proper condition for the service required; and, if not, to put them in the proper condition, or see that they are so put before using them. The company does not wish or expect its employes to incur any risks whatever from which, by exercise of their own judgment, and by personal care, they can protect themselves; but enjoins them to take time in all cases to do their duty in safety, whether they may, at the time, be acting under orders of their superiors or othewise." The defendant also offered to introduce in evidence the following section of the rules: "147. Freight-train brakemen must, before leaving a terminal station, examine all brakes on their trains, and if any should be found in bad order, report the fact to their conductors." The plaintiff objected to the introduction of each of these rules by the defendant, and the court sustained his objection, and refused to allow them to go to the jury, whereupon the defendant duly expected.

In the opening argument, plaintiff's counsel said: "The railroad company would have discharged the brakeman Griffin if he had let down the gates to pass over the ends of the cars, as he would have been too slow in performing his duty and would have been discharged for inefficiency." The defendant's counsel immediately excepted to this remark, and counsel for plaintiff, who was then facing defendant's counsel, said he would withdraw the remark, and, turning to the jury, said: "Defendant was catching at every straw for the purpose of reversing this case in the supreme court." The counsel for defendant again excepted, and, upon plaintiff's counsel consenting to withdraw the remark, defendant's counsel said he did not wish it withdrawn, "as it had had its effect upon the jury, and its withdrawal would not remove its effect." Plaintiff's counsel then said to the jury "that the deceased was a poor man," to which remark counsel for defendant again excepted. The bill of exceptions then states: "Then counsel [for plaintiff] said that he would withdraw it, and, if defendant would wait until he got through, he would write out his speech and give defendant a general exception to the whole of it. Counsel then said deceased was 35 years of age, and had a reasonable expectation of life. Defendant immediately excepted to this remark, and counsel said he would withdraw that also. Counsel for plaintiff, in his closing argument, said: 'Gentlemen of the jury, the defendant has no confidence in its case, and, as an evidence of this fact, it has been deserted by its leading counsel. Judge Brickell has actually flown from the case, and abandoned it to his associates, Messrs. Harris and Eyster. Why is not Judge Brickell here at this time, when they need him most?' Defendant then and there excepted to the remarks of counsel for plaintiff, and all the presiding judge said, during all these exceptions to remarks of counsel, and when the same was noted, was that the remarks were improper. 'Very...