Rome & D.R. Co. v. Chasteen

• Decision Date: 19 December 1889
• Citation: 88 Ala. 591,7 So. 94
• Court: Alabama Supreme Court
• Parties: ROME & D. R. CO. v. CHASTEEN.

7 So. 94

88 Ala. 591

ROME & D. R. CO. v. CHASTEEN.

Supreme Court of Alabama

December 19, 1889

Appeal from circuit court, Etowah county; JOHN B. TALLY, Judge.

Action by R. Chasteen against the appellant, the Rome & Decatur Railroad Company, for personal injuries. The case was tried on the general issue and a special plea of contributory negligence. The essential facts of the case are sufficiently stated in the opinion of this court, and need not be repeated here.

The court instructed the jury, at plaintiff's request, as follows: (1) "The court charges the jury that if they believe from the evidence that the defendant, by the negligence of its agent in operating its train, injured the plaintiff, by mashing two of his fingers, so that it was necessary to have them amputated, and that this was done without any negligence on the part of the plaintiff, then the verdict of the jury must be for the plaintiff." (2) "The court charges the jury that if they believe from the evidence that plaintiff, at time of injury, was in the employ of Daniel Callahan and under the authority of the conductor, and had been used in coupling cars before, and the conductor ordered him to couple the cars, and the coupling of the cars was not manifestly dangerous, then it was not negligence in him in obeying said order and attempting to execute said order." (3) "The court charges the jury that if the jury believe from the evidence that Daniel Callahan was operating the defendant's road from Gadsden to Atalla, and conveying freight and passengers between these points, and receiving reward therefor, then the defendant is responsible for the negligence of the agents and servants of said Callahan, if the jury believe from the evidence there was any negligence on their part." (4) "The court charges the jury that although they may believe that Chasteen went in to couple the cars against the orders of Lunsden, yet if the engineer knew, or ought to have known, the position of peril in which Chasteen placed himsef, if he placed himself in such position, and the engineer failed to exercise due care and skill to avoid injuring Chasteen, and Chasteen was injured thereby, the contributory negligence of Chasteen would be no defense, and he would be entitled to recover if he has made out his case otherwise."

The court refused to instruct the jury, at defendant's request, as follows: (1) "The court charges the jury, at the request of the defendant, that, if they believe all the evidence in this case, they must find their verdict for the defendant." (2) "The court charges the jury for the defendant that if they believe from the evidence that there was no contract between Callahan and defendant to build the road, and Callahan was not building the road, yet if the jury believe from the evidence that the train that injured plaintiff was being operated by Callahan through his agents and servants, and the jury further believe that the plaintiff was a servant of said Callahan, employed on said train to aid in operating it and in loading at the time the injury occurred, then the jury must find for the defendant." (3) "The court charges the jury, at the request of defendant, that, before the plaintiff can recover in this case, the plaintiff must show by the evidence in the case, to the reasonable satisfaction of the jury, that at the time the alleged injury occurred to plaintiff, by his attempting to couple cars, the train was being operated by defendant or under its control, that the persons operating said train were the servants or agents of defendant in operating said train and, if the plaintiff has failed to reasonably satisfy the jury of these things by the evidence, then the verdict of the jury must be for the defendant." (4) "The court charges the jury, at the request of the defendant, that building a railroad by a railroad corporation is not a corporate act, and such railroad corporation may employ an individual or company to build such railroad for such corporation; and if the jury believe from the evidence that the defendant employed one Callahan to build its railroad and the jury further believe from the evidence that the alleged injury occurred to plaintiff while he was attempting to couple cars, and that the train of said cars was being operated by said Callahan through his agents to aid him in building said railroad, that the plaintiff was employed by said Callahan to work on or about said train at the time of the alleged injury, and at such time the engineer and conductor were the agents and servants of said Callahan to operate said train, then, in such case, the defendant is not liable for such injury, and the verdict of the jury must be for the defendant." (5) "The court charges the jury, at the request of the defendant, that if they believe from the evidence that, at the time of the alleged injury Callahan was engaged in building the defendant's railroad, whether under contract with defendant or not to build said road, and the jury further believe from the evidence that the alleged injury occurred to plaintiff by his attempting to couple cars, and that the train of said cars was being operated by said Callahan, through his agents, to aid him in building said railroad, that Lunsden and the engineer were the agents of Callahan to operate said train at the time of the injury, and at the time of said injury the plaintiff was the servant of Callahan, employed to work on or about said train, then, and in such case, the defendant is not liable, and the verdict of the jury must be for the defendant." (6) "The court charges the jury, at the request of the defendant, that if they believe from the evidence that, at the time of the alleged injury, Callahan was not employed by the defendant to build its railroad, and was not engaged in building any railroad, yet if the jury believe from the evidence that, at the time of the alleged injury, Callahan, through his servants and agents, was operating said train of cars for his own benefit or use, and that the alleged injury occurred to plaintiff while he was attempting to couple cars composing a part of said train, and at such time the plaintiff was a servant or agent of the said Callahan, employed to work on or about said train, then, in such case, the defendant is not liable, and the verdict of the jury must be for the defendant." (7) "The court charges the jury, at the request of the defendant, that in ascertaining whether the plaintiff, conductor, or other persons were the servants or agents of Callahan in operating said train, and whether the train was being operated by Callahan to aid him in constructing the railroad, or for any other purpose, for his own use or benefit, at the time the alleged injury occurred, the jury may...