Warden v. Louisville & N.R. Co.

• Decision Date: 25 November 1891
• Citation: 10 So. 276,94 Ala. 277
• Parties: WARDEN v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

10 So. 276

94 Ala. 277

WARDEN v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

November 25, 1891

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

Action by Henry Warden against the Louisville & Nashville Railroad Company for injuries received while in defendant's employ. Judgment was entered on a verdict directed for defendant, and plaintiff appeals. Affirmed.

Taliaferro & Houghton, for appellant.

Hewitt, Walker & Porter, for appellee.

MCCLELLAN J.

Appellant was plaintiff below. He received personal injuries while in the service of the appellee as head or front brakeman on a freight train, and brought this action to recover damages therefor. The trial was had upon the general issue, and several special pleas, each averring plaintiff's contributory negligence. No evidence was adduced except on the part of the plaintiff, and upon this the court gave the general affirmative charge in favor of the defendant on the theory that his own evidence was free from conflict and all contrary inferences to the proof of negligence on plaintiff's part which proximately contributed to the injury sustained by him. This evidence showed that the train on which plaintiff was employed was a regular cross-country freight train of the defendant company. Its run was over the line between Bessemer and Boyles station, a distance of 17 miles, between which points were four other stations from one to seven miles apart. The business of this train was to receive and deliver at these intermediate and terminal stations cars laden with ore, pig-iron, and the like, and also general freight; and in doing the work assigned to it it was necessary to do more or less switching, and setting in upon and taking out from side tracks loaded cars, at each one of these stations. It was plaintiff's duty, when the train was proceeding along the line, to attend to the brakes on the two or three cars next to the engine,-a duty which could be performed only on the tops of the cars; and, on approaching a station at which cars were to be left or taken on, his duty was to open switches leading into and out of sidings,-a duty which could only be performed on the ground, in front of the engine. It does not appear that he had any duties to perform, or that any of his duties could be performed, on the pilot, cross-beam, or cow-catcher of the engine, or that it was in any sense necessary for him to be on the cross-beam in front of the engine at any time, and certainly at no time while the train was passing from one to another of the stations served by it. Yet it is uncontroverted in this case that he received the injuries of which he now complains while sitting on this cross-beam in front of the engine,-the beam to which the pilot or cow-catcher is attached,-with his legs hanging over in front of the pilot, and this while the train was out on the main line, proceeding from one station to another, and when the only duty he could possibly have had to perform was upon the top of the train. Not only so, but it is equally clear from the testimony that the casualty was directly the result of the pilot's colliding with a rail of a bisecting road; that no other part of the train or engine was injured; that no other of the several persons on the train was hurt; and that he would not have been hurt but for his having taken this position on the pilot. There being thus no doubt that plaintiff's presence on the pilot contributed proximately to the injuries he sustained, the main question in the case is whether his being there at the time of the accident was negligence in se on his part, and to be so declared by the court as a matter of law. The authorities are believed to be uniform to the support of the affirmative of this inquiry. The investigations of the court and counsel have failed to disclose a single adjudged case to the contrary, while many courts are upon the record as holding, either by analogy or directly, that to ride upon the pilot or cross-beam in front of an engine while proceeding on its way along the line of its track, without justifying necessity therefor, involves per se such negligence as will defeat an action counting upon injuries received while so riding, and which would not have been received but for the plaintiff's being there. Even the assumption of less dangerous, but, at the same time, improper, positions on moving trains, voluntarily and unnecessarily, has been many times held to be contributory negligence as a matter of law, neutralizing the negligence of the defendant, and destroying an otherwise good cause of action, as is illustrated in the following cases: Martin v. Railroad Co., 41 F. 125; Judkins v. Railroad Co., (Me.) 14 A. 735; Hickey v. Railroad Co., 14 Allen, 429; Railroad Co. v. Langdon, 1 Amer. & Eng. R. Cas. 87; Railroad Co. v. Thomas, Id. 79; Railroad Co. v. Greiner, (Pa. Sup.) 6 A. Rep. 246; Railroad Co. v. Ray, 70 Ga. 674; Martensen v. Railroad Co., (Iowa,) 15 N.W. 569. And it is laid down as a general proposition that the act of riding, without a necessity so to do, on an engine is contributory negligence per se, which will defeat recovery for injuries resulting in consequence from collisions, and the like. Abend v. Railway Co., 17 Amer. & Eng. R. Cas. 614; Doggett v. Railroad Co., 34 Iowa, 284; Robertson v. Railroad Co., 22 Barb. 91. As an engine is justly considered the most dangerous place to be on a train moving forward, so, for the same reasons, the pilot is manifestly and obviously the most perilous place on a forward moving engine. Its very name is a proclamation of danger. The sole end it is intended to conserve-the removal of obstructions from the track-is alone sufficient to impress upon it, to the apprehension of every man in his right mind, the character of being the most perilous place capable of occupation on a train while proceeding from station to station on its way. And so, we repeat, the authorities present unanimity to the proposition that to take position there under such circumstances is a fact not only authorizing the inference of negligence to be drawn by the jury, but to which the law itself imputes negligence.

A leading case on the point is that of Railroad Co. v Jones, 95 U.S. 439. There the plaintiff was one of a party of men employed by a railroad company in constructing and repairing its road-way. They were usually conveyed to and from their place of labor by the company, and a box-car drawn by an engine was used for this purpose. The plaintiff, although forbidden on several occasions to do so, and warned of the danger, on returning from work one evening rode on the pilot or bumper of the locomotive, and was injured from a collision with some cars standing on the track in a tunnel. There was room for him in the box-car, as there was room for the plaintiff here on the train; and none of those in the box-car were hurt, as here all who remained on the cars escaped injury. It was held that, as the plaintiff would not have been injured had he used ordinary care, he was not entitled to recover, Mr. Justice SWAYNE observing: "His injury was due to his own recklessness and folly. He was himself the author of his misfortune. This is shown with as near an approach to a demonstration as anything short of mathematics will permit." In the case of Kresanowski v. Railroad Co., 18 F. 229, the facts were that the plaintiff, an employe of the defendant railroad company, while being transported to the place where his services were required, along with other employes, on an engine provided by the company, sat, with one or two others, on the front of the engine, with his feet hanging over the pilot, and was injured by a collision with another engine. It was held, on a motion to instruct the jury to find a verdict for the defendant, (1) that the plaintiff himself so far contributed to his injury by his own negligence in placing himself in such a dangerous position that he could not recover; and (2) there being evidence that there was no room for the plaintiff on the tender, and that he had in effect been authorized or invited by the company to ride over the pilot, that, the plaintiff being of age, and able to see and know the risks of the position, even the fact of such invitation and authorization would not justify him in placing himself in a position of obviously great risk and danger. But the strongest support of this doctrine is found in the circumstances of a Michigan case, and the several decisions which were made in different actions which grew out of it. The facts were that a switchman in the employ of a railway company was killed. The engine upon which he was employed, and which was at the time engaged in switching cars about the yard of the company, ran into a truck owned by the defendant, an individual having no connection with the railway company, and driven by his teamster. The result of the collision was the death of the switchman, injury to defendant's teamster, and destruction of the truck and team. The switchman, at the time of the collision, was sitting on the cross-beam of the pilot, with his feet hanging down over the "cow-catcher." He had no duties to perform while on the engine. His duty was to attend to the switching of tracks in front of the engine, getting off and on the cars for that purpose. It is to be noted that, while this case is strikingly like the one at bar in most of its features, it is yet...