Seaboard Mfg. Co. v. Woodson

• Decision Date: 03 November 1892
• Citation: 98 Ala. 378,11 So. 733
• Parties: SEABOARD MANUF'G CO. v. WOODSON.
• Court: Alabama Supreme Court

11 So. 733

98 Ala. 378

SEABOARD MANUF'G CO. v. WOODSON.

Supreme Court of Alabama

November 3, 1892

Appeal from circuit court, Mobile county; WILLIAM E. CLARKE, Judge.

Action by Abe Woodson against the Seaboard Manufacturing Company for personal injuries. From a judgment in plaintiff's favor defendant appeals. Reversed.

For former report, see 10 South. Rep. 87.

The undisputed evidence in the case showed that the defendant was operating a road as common carrier, and was engaged in constructing a part of its road; that the plaintiff was a fireman in the employment of the defendant upon its engine No. 2, and that one William Lewis was the engineer in charge of that engine; that one Du Mont was the defendant's train dispatcher and foreman, and was charged with the duty of employing and discharging the defendant's firemen that one Roberts was the defendant's master mechanic, and was charged with the duty of repairing defendant's engines when out of order; and that one Spottswood was the defendant's general superintendent; and that each of said parties was charged with the duty of seeing that the defendant's works and plant were kept in order. Engine No. 2, with one car, called a "brake car," proceeded some distance on the defendant's road, and stopped. The plaintiff put the brakes upon the driving wheel of the engine, and one O'Brien put the brakes upon the brake car, and a chock behind its wheels. The engineer testified that he put the lever in a forward motion position closed the throttle valve, screwed down the thumb screw, and opened the cylinder cocks, and that he then left the engine with the plaintiff. There was no evidence contradicting this testimony except by circumstances hereafter stated, which may or may not be in conflict with this statement, according to the credence given to a certain part thereof. In the absence of the engineer, the fireman was either under or reaching under the engine, cleaning it, when the engine moved backward, and ran over and crushed his arm. He then got on the engine and blew the whistle, and the engineer and one Hager returned, and found the brakes off the engine, and the throttle valve open, and the lever in a backward position. The evidence was in direct conflict as to whether the engineer had or had not ordered the plaintiff to go under the engine and clean it, and also as to whether the plaintiff went under the engine before or after the engineer left the engine. Plaintiff also introduced evidence tending to show that the throttle valve leaked, and that this was known to the defendant's foreman Du Mont, and that this defect caused the injury to him. Appellant claims there was no such evidence, or at any rate no sufficient evidence to justify a verdict on that account. The testimony of the plaintiff and the defendant was in direct conflict as to whether or not the throttle valve of the engine leaked. The plaintiff testified that it was his duty to put the brakes on the driving wheel of the engine, and that, if the engineer was going away, it was his duty, before going under the engine, to see that it was made safe. The plaintiff testified that he did not go on the engine at all after the engineer left it, and that he did not disturb the throttle valve or lever, or do anything else to the engine. The undisputed evidence also showed that the engine was a secondhand engine; that it had been bought by the defendant; and that it had been in the shops for repairs several times before and after the plaintiff was injured; and that the brake shoes were taken off the engine; but the evidence does not show for what purposes the engine was in the shop on any other occasion.

After the introduction of all the evidence, the court of its own motion, and as a part of its general charge, instructed the jury as follows: "In the third count of the complaint the plaintiff charges that he was injured by reason of the negligence of the locomotive engineer, in this: That he ordered the plaintiff to go underneath said engine, and wipe oil, and clean the same, and then left the engine and went some distance a way without taking necessary precaution to prevent said engine from moving off. Well, under this count he has to prove to you, in the first place, that the plaintiff was subject to the orders of the engineer, and that the engineer ordered him to go under the engine and oil it, and that the engineer went off without taking the proper precaution to keep the engine from moving off. Now, if the plaintiff was under the orders of the engineer, and the engineer went off and left the engine in such condition that it would move off, and it did move off and injure him, he could recover, provided he was not guilty of contributory negligence." The defendant duly excepted to this portion of the general charge; and the court also gave the following as a portion of the general charge: "That if the jury believe from the evidence that engine No. 2 was in a defective condition, as charged in the complaint, and that the plaintiff knew of the same, and failed or neglected to inform the defendant, or some servant of the defendant superior to plaintiff, in its service or employ, then the plaintiff could not recover, unless you believe from the evidence that he was aware that the defendant, or some servant of the defendant in its service or employ, superior to the plaintiff, knew of the defective condition of said engine. And the burden of proof of all these facts rests upon the plaintiff." The plaintiff then asked the court to give the following written charges: (1) "The court instructs the jury that a corporation operating a railroad is bound to use all reasonable precautions for the safety of its employes, and should furnish such locomotive engines and keep them in such condition as would be least likely to cause injury, so far as this can reasonably be done. It is not, however, bound to the exercise of extraordinary care. It is required to furnish such locomotive engines only as are reasonably well calculated to insure the safety of its employes. The court further instructs the jury that a corporation operating a railroad, as regards its employes, must use all ordinary care and supervision to keep its locomotive engines in a good and safe condition; and if the jury believe from the evidence that its agents, charged with the duty of inspecting and having its locomotive engines repaired, had notice of defects in the locomotive engine in question, or by reasonable care and diligence could have learned of said defects, and omitted to make repairs, and that in consequence of which the plaintiff was injured, while he himself was using reasonable care and prudence, then the court instructs you that would be a want of such care on the part of the corporation as the law requires, and the defendant would be liable to the plaintiff." (2) "The court instructs the jury that it is a duty the law imposes upon corporations operating railroads that they shall do everything that reasonably can be done to furnish safe locomotive engines to its employes, to be used by them in working on the railroad, and that it is not a duty that can be delegated to its officers and agents, so as to avoid liability on the part of the corporation. And in this case, if the jury believe from the evidence that the defendant, through the negligence and want of reasonable care of its foreman, neglected and failed to furnish a safe engine upon the occasion in question, but did, through negligence and want of reasonable care and caution, furnish an engine that...