Southern Ry. Co. v. Howell

• Decision Date: 28 February 1903
• Parties: SOUTHERN RY. CO. v. HOWELL.
• Court: Alabama Supreme Court

34 So. 6

135 Ala. 639

SOUTHERN RY. CO. v. HOWELL.

Supreme Court of Alabama

February 28, 1903

Appeal from City Court of Birmingham; Chas. A. Senn, Judge.

Action for injuries by W. H. Howell, a brakeman, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The opinion states the material facts relating to the admission or exclusion of evidence.

The following special written charges were requested by defendant, and separately refused by the court, namely "(1) If the jury believe all the evidence in this case they must find a verdict for the defendant." "(3) If the jury believe all the evidence in this case, they must find a verdict for the defendant on the second count of the complaint. (4) If the jury believe all the evidence in this case, they must find a verdict for the defendant on the third count of the complaint." "(7) The court charges the jury that if they believe from the evidence that the cross-tie which caused the derailment of the car was left at a safe distance from the track by the servants of the defendant, and that it was subsequently placed in dangerous proximity thereto by the employés of the mining company operating the mines at that point, and not by the employés of the defendant, and that this caused the accident to plaintiff, then they must find a verdict for the defendant. (8) If the jury believe from the evidence that the cross-tie causing the derailment of the train was in the clear of the cars passing on the track, and that the employés of the mining company, in removing slate or refuse from the track buried one end of it, and raised the other end up so that it would strike the car, and that this was the cause of the accident and injury to plaintiff, then they must find a verdict for the defendant." "(11) The court charges the jury that if they believe from the evidence that plaintiff was riding on the car with his leg over the side of the car, on the outside thereof, and that the injury to him resulted in whole or in part therefrom, then they must find a verdict for the defendant. (12) The court charges the jury that the evidence in this case shows that plaintiff was riding the car with his leg on the outside thereof, and the law is that in assuming this position he assumed the risks incident thereto, and cannot recover in this action. (13) The court charges the jury that it is negligence per se for a brakeman to ride on a car with his leg hanging outside of the car, and, if he is injured in that position by reason thereof, then he cannot recover in an action for damages for such injury." "(15) If the jury believe from the evidence that plaintiff saw the cross-tie twenty yards ahead and failed to signal the engineer or give him warning of the obstruction, and that this contributed proximately to his own injury, then they must find a verdict for the defendant." "(17) The court charges the jury that if they believe from the evidence that plaintiff saw the cross-tie twenty yards ahead, and that, in his judgment, it was clear of the cars, but that he was mistaken in his judgment, and that this mistake of judgment on his part caused him to fail to warn the engineer, and that this contributed proximately to his own injury, then they must find a verdict for the defendant. (18) If the jury believe from the evidence that plaintiff saw the cross-tie twenty feet ahead, and failed to signal the engineer, or give warning of the obstruction, and that this contributed proximately to his own injury, then they must find a verdict for the defendant. (19) The court charges the jury that J. A Honeycutt was not in charge or control of the railroad track or of the roadbed of the defendant at the place where this accident occurred, at the time of the accident." "(22) I charge you, gentlemen of the jury, that a brakeman or switchman, even though in discharge of his duties, and even though ordered by his superior to do so, has not the right to assume a position, or go into a place wherein and whereby he incurs an obvious danger, and, if he does so, and thereby suffers injury, he has only himself to blame. Furthermore, I charge you that there are certain places on a railroad car, engine, or train which are known to be extra-dangerous, such as the pilot of an engine, and there are certain positions or attitudes on such engine, train, or car known to be extradangerous, such as where the brakeman sits on the brake-beam of a car in a train with his legs hanging down between cars; and if one unnecessarily and voluntarily goes into such a place or occupies such a position, and is thereby injured, he has no one to blame but himself. I charge you further that the particular position occupied by the plaintiff in this case, namely, that of sitting on the car with his leg hanging over the corner and down the side of the car, was voluntarily assumed by him. Was it necessary? He claims it was. The defendant denies this. You are to determine that question by the evidence. And did this particular attitude of sitting with his leg hanging over the car expose him either to an obvious hazard, or to an extraordinary hazard of which he ought to have been apprised? If so, your verdict should be for the defendant, for it is not disputed that, but for this position or attitude of the plaintiff, he would not have been injured." "(29) The court charges the jury that there is no evidence in this case tending to show that Honeycutt was guilty of any negligence, whilst in the exercise of his superintendence of the repairs or maintaining of the railroad track, which contributed proximately to the injury of the plaintiff. (30) If the jury believe from the evidence that the plaintiff was negligent in riding with his leg outside of the car, and that this contributed proximately to his own injury, then they must find a verdict for the defendant. (31) The court charges the jury that if they believe from the evidence that the plaintiff was guilty of negligence in not perceiving the obstruction in dangerous proximity to the track, or that he saw the obstruction and was negligent in not giving proper signal to the engineer to stop or check the train, and that this contributed proximately to his own injury, then they must find a verdict for the defendant." The court gave at defendant's request charge 23, as follows: "If the jury believe from the evidence that the plaintiff, when injured, was riding on the car in a sitting position, with his leg hanging over the end or side of the car, and that this position was both voluntarily and unnecessarily assumed and maintained by him, and that, but for his occupying this position, he would not have been injured, your verdict must be for the defendant." The court then stated to the jury, in reference to charge 23, as follows: "Gentlemen in giving this charge, I want to call your attention to one or two words I think might mislead you [reading charge]. That is all, but I call your attention to what I told you a while ago--'voluntarily and unnecessarily.' Of course, if he had some other place to ride equally as good and safer, why then it would not be necessary; and, if it was obviously dangerous, it was not necessary. It is never necessary to a man to do an obviously dangerous thing. So the words 'voluntarily and unnecessarily' are to be taken with the explanation I have given you." To the qualifying of said charge No. 23, as well as to the refusal...