Memphis & C.R. Co. v. Graham

• Decision Date: 27 November 1891
• Citation: 10 So. 283,94 Ala. 545
• Court: Alabama Supreme Court
• Parties: MEMPHIS & C. R. CO. v. GRAHAM.

10 So. 283

94 Ala. 545

MEMPHIS & C. R. CO. v. GRAHAM.

Supreme Court of Alabama

November 27, 1891

Appeal from circuit court, Madison county; H. C. SPEAKE, Judge.

Action by Ella P. Graham, as administratrix, against the Memphis &amp Charleston Railroad Company, for the alleged negligent killing of plaintiff's husband. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

The printed rules of the company required the coupling to be done by the brakemen with sticks made for that purpose. Rule No 139, introduced in evidence, required that "every employe must exercise the utmost caution to avoid injury to himself or to his fellows, especially in the switching of cars and the movement of trains, which wor each employe must look after, and be responsible for his own safety. Jumping on or off trains or engines in motion, getting between cars in motion to couple or uncouple them, and all similar imprudences, are dangerous and in violation of duty." Defendant excepted to the following portions of the general charge given by the court: "Again, if you find that there was such defect, and the same was known to the person in the employment who was intrusted with the duty of seeing that the draw-head of defendant's car was in proper condition, and that such defect had existed for such a length of time as, with proper diligence, it could have been discovered or remedied by defendant, then, in that event, you would be authorized under the law to say that the defendant was negligent. (2) And if you further believe that the death of deceased was caused by the negligence of defendant as above described, then the law would authorize you to find a verdict for the plaintiff. (3) You must also look to all the evidence, including custom referred to by the witnesses, to determine the reasonableness of said rules, and whether or not they had been modified by the custom of employes in coupling and uncoupling cars, and whether or not such custom or usage was known to defendants." The court refused to give the following written charges, requested by defendant "(1) If the jury believe the evidence they must find for the defendant. (2) I charge you that rule 139, in the rules attached to the time-table, and which has been introduced in evidence, is such a rule as defendant had a right to establish; and, if John L. Graham came to his death in consequence of his trying to get between cars while in motion to uncouple them, he was acting in violation of such rule and your verdict should be for defendant. (3) It is not shown in this case that it was the duty of the defendant, while the car with the broken draw-head was at Huntsville for several days prior to October, 1887, to examine or inspect the same, or to notify said Graham, as conductor, of its condition. (4) If the jury find from the evidence that a rule of the defendant made it a violation of duty for an employe to get between cars in motion to couple or uncouple them, and that John Graham came to his death in trying to get between cars in motion to uncouple them, then the verdict of the jury must be for the defendant. (5) If the jury believe from the evidence that John L. Graham came to his death while violating a rule of defendant in trying to get between cars in motion to uncouple the same, the verdict must be for the defendant. (6) I charge you that rule 138, in the rules attached to the time-table, and which has been introduced in evidence, is a reasonable rule, which the defendant had the right to establish. (7) If it was safer for Graham to go on the platform of the coach, and from there couple or uncouple, and it was more dangerous to go between the cars to couple or uncouple, and these facts are shown by the evidence, and Graham adopted the more dangerous method of coupling or uncoupling, then Graham was guilty of contributory negligence, and the verdict of the jury should be for the defendant. (8) No failure of duty on the part of defendant in allowing the draw-head or coupling apparatus to become or remain defective or broken would excuse John L. Graham from examining the condition of such draw-head or coupling apparatus before using the same, or exposing himself between the cars; and, if the jury believe from the evidence that if John L. Graham had examined the condition of the draw-head or coupling apparatus he would have discovered that it was defective or broken, so as to be dangerous to use,-then the verdict must be for the defendant. (9) Although the railroad company may have been negligent in having a defective car, yet if the jury believe from the evidence that Graham violated a rule of the company in going between a car in motion to uncouple it, and thereby was killed, and that at the time he violated such rule he had knowledge of the said rule, then the plaintiff cannot recover in this case. (10) If the jury believe from the evidence that it was a rule of the company that no employe should enter between cars in motion to couple or uncouple them, and that Graham had knowledge of such rule, and in violation of such rule he did go between said cars while in motion, and if you believe from the evidence that his violation of said rule approximately contributed to his death, then the plaintiff cannot recover in this case. (11) If the jury believe from the evidence that said car could have been uncoupled with safety after said car had stopped, or with safety from the platform of said car, and the rule of the company required that all employes should exercise great care and caution in coupling and uncoupling cars, and that Graham had knowledge of such rule, then he was bound to uncouple said car from the platform, or wait till said car had stopped before he attempted to uncouple it; and if you believe that his failure to do so proximately contributed to his death, then the plaintiff cannot recover."

Humes & Sheffey, for appellant.

Wm. Richardson and E. L. Palley, for appellee.

COLEMAN J.

The evidence shows that the plaintiff's intestate, John L Graham, whose regular employment was that of freight-car conductor, went between the cars while in motion to uncouple a freight-car from a passenger-car, and on account of a defective or broken draw-head or coupling appliance was crushed and killed. There was a platform to the passenger-car next to the freight-car where the uncoupling was to be done. The defense was contributory negligence, and that plaintiff's intestate came to his death in violation of a rule of defendant, which prohibited employes from going between the cars while in motion to uncouple them. The plea does not set out the rule, or aver that plaintiff's intestate knew of the existence of such rule. In the case of Railroad Co. v. Hawkins, 92 Ala. 241, 9 South. Rep. 271, it was distinctly declared as the settled doctrine in this state that the adoption and promulgation by an employer of a rule for the guidance of an employe does not charge the latter with knowledge thereof, so as to impute negligence to him for its violation, but that to such end it is essential that knowledge of its existence be brought home to the employe. It was further held that a plea setting up a violation of such rule as establishing contributory negligence was open to demurrer which failed to aver knowledge of such rule. It is also well settled that where issue is joined upon an insufficient plea it becomes one of the issues to be tried by the jury, and that the defendant is entitled to the advantage of such plea, in the introduction of evidence in support of it, and in the instructions to be given by the court to the jury. Farrow v. Andrews, 69 Ala. 97. A conductor who voluntarily, even though by the permission or acquiescence of the employer, undertakes to perform the duties of coupling or uncoupling cars, subjects himself to all reasonable rules and regulations prescribed by the employer for the government of those whose duty it is to perform this work. Rule 139, offered in evidence, prescribes that "getting between cars in motion to couple or uncouple them is dangerous, and in violation of duty. All employes are warned that, if they commit these imprudences, it will be at their own risk and peril." This rule, or one similar to it, has been declared by repeated decisions of this court to be reasonable and "wholesome," and that railroad companies were justifiable in adopting and enforcing it for their own protection and that of employes. Railway Co. v. Propst, 90 Ala. 3, 7 South. Rep. 635, 83 Ala. 518, 3 South. Rep. 764; Pryor v. Railroad Co., 90 Ala. 35, 8 South. Rep. 55; Railroad Co. v. Watson, 90 Ala. 69, 8 South. Rep. 249. When the authorities declare that the rule is "reasonable" and "wholesome," it is with the qualification or understanding that the duties required may be performed consistently with the observance of the rule; and if the sticks furnished by the employer-as the evidence in this case tends to show-are so short that a coupling cannot be made by their use without going between the cars, the rule which forbids employes from going between cars to effect a coupling while in motion would afford no protection to the master if the duty imposed necessitated its non-observance. The rule which requires the use of sticks to make couplings is "reasonable" and "wholesome," and an employe who, having knowledge of the rule, and provided with a stick by which this duty can be performed without going between the cars, and in violation of the rule, without urgent and excusable necessity, goes between the cars, and is thereby injured, is guilty...