Richmond & D.R. Co. v. Free

• Decision Date: 26 January 1893
• Citation: 12 So. 294,97 Ala. 231
• Court: Alabama Supreme Court
• Parties: RICHMOND & D. R. CO. v. FREE.

12 So. 294

97 Ala. 231

RICHMOND & D. R. CO. v. FREE.

Supreme Court of Alabama

January 26, 1893

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

Action by Tobe Free against the Richmond & Danville Railroad Company for personal injuries alleged to have been received by the negligence of defendant. From a judgment for plaintiff defendant appeals. Reversed.

The complaint, as originally filed, contained two counts. The second count, under which the trial was had, counted upon the negligence of the engineer who was in charge of the engine at the time of the accident, and issue was joined on the pleas interposed to this count. All the facts of this case are sufficiently stated in the opinion.

James Weatherly, for appellant.

B. M Allen, for appellee.

HARALSON J.

There are two counts in the complaint, but the trial was had under the second. The defendant pleaded the general issue of not guilty, and a plea of contributory negligence on the part of the plaintiff. On these the plaintiff took issue. It becomes necessary, in view of the charges refused and given by the court, to review the evidence introduced. It may be stated as beyond the pale of controversy, that there was a rule of the company, with which the plaintiff was familiar, which prohibited brakemen from coupling and uncoupling cars, except with a stick, and from going in between them, under any circumstances, for that purpose, when an engine was attached to the cars or train. According to the evidence of the engineer, examined in behalf of the defendant, he saw the plaintiff just before he stepped between the cars to adjust the pin for the coupling, but it was impossible for him to see him while between them. That a man by the name of Ed Hunter was on the top of the rear car attached to the engine giving the signals by which the engine was being moved. That when the witness started back at first to make the coupling he had eight or ten car lengths to back before reaching the stationary cars to be coupled. That he backed, with the engine and cars attached under full control, and failed to make the coupling with the stationary cars, as he ascertained from the fact that plaintiff, the coupler, came out himself into view, and gave witness a signal to slack or pull off a little. That witness accordingly pulled away and stopped, and plaintiff went in to fix the link, which, as witness was told, slipped around the pin, and afterwards he received a slow signal from the brakeman on the top of the car to come back, and he obeyed it as given. That the drawheads of the cars coming together did not more than touch, since he had only a space of about 18 inches to back, this, the second, time. That when an engine pulls away and stops for a coupling to be arranged, there is no danger for one to go in between the cars to adjust a pin or link, and the rules of the company forbade a coupling if the engine was attached to the cars; and when an engine was detached for the purpose of allowing a coupling to be arranged for, it never backed without a signal to do so, and in this instance he went back in response to a slow signal from the brakeman on the car. That the plaintiff's duty, as a coupler, was to use a stick, and to keep his body and arms out from between the cars, and it was not necessary, if a stick was used, for him to put his body or arm between them. The brakeman, Ed. Hunter, testified that he was standing at the time on the top of a car, attached to the engine, to be coupled, and gave the engineer a signal to come back slowly, and he did so. That the plaintiff missed making the coupling, and said to witness to "slack off," and witness gave the signal to that effect to the engineer, who obeyed it by pulling away and stopping; and plaintiff, having fixed the link, said,...