Appeal
from circuit court, Montgomery county; John G. Winter
Special Judge.
Action
by L. B. Williamson, against the Western Railway of Alabama
to recover damages for personal injuries sustained by
plaintiff while in the discharge of his duties as a brakeman
on defendant's road. Plaintiff had judgment, and
defendant appeals. Reversed.
The
first count of the complaint was as follows: "The
plaintiff claims of the defendant the sum of twenty thousand
dollars as damages for that, whereas, heretofore, to wit, on
the 20th day of November, 1894, the defendant was a
corporation engaged in the operation of a railway from the
city of Selma through the city of Montgomery in the state of
Alabama, to West Point, on a line between the states of
Georgia and Alabama, and in the operation of said railway ran
trains for the carriage of freight and passengers between
said points. That the plaintiff was at that time a brakeman
in the employ of the said defendant and was acting as such
for said defendant on a train for the carriage of freight
running between the cities of Montgomery and Opelika, in the
state of Alabama, and that while the said plaintiff was so
engaged on said train, it became necessary to attach to said
train certain cars upon an elevated track at Sistrunk &
Jordan's lumber yard near Goodwyn's station, Alabama
on the line of said railway between the city of Montgomery
and the city of Opelika. That it was the duty of said
plaintiff prior to connecting said cars with said train, to
examine the same so as to know the kind and condition of the
drawheads, drawbars and coupling apparatus; and this
plaintiff undertook the discharge of his said duty and made
the said examination; and while he was in the discharge of
his said duty making said examination, the engineer in charge
of the locomotive attached to said train negligently caused
the same to be pushed and shoved against the car that the
said plaintiff was in the act of examining, with such
rapidity and violence as to catch the said plaintiff between
the said car and the said train and to so mash and bruise his
right hand and arm as to require his right hand to be
amputated, thereby permanently disabling the said plaintiff
and rendering him unable to labor for a long time, for, to
wit, five months, and for all time greatly impairing his
capacity to earn a livelihood, besides putting him to great
expense in procuring the proper medical attendance and
causing him to suffer great mental and physical pain, all of
which was to his damage as aforesaid, wherefore, this
suit."
The
second count of the complaint, after stating the facts as to
the allegation of the injury, etc., as prefatory allegations
then continues: "That it was the duty of said plaintiff
prior to connecting said cars with said train to examine the
same so as to known the kind and condition of the drawheads,
drawbars and coupling apparatus; and this plaintiff undertook
the discharge of his said duty and made the said examination.
And plaintiff avers that a conductor was in charge of said
train, and it was his duty, while he, the said plaintiff, was
making the said examination, to be at a point near the said
train, and the cars that were to be coupled thereto, and
where he could see both the plaintiff and the engineer in
charge of the locomotive attached to the said train, and
could direct the movements of said locomotive so as to
prevent the said train from running upon or against the said
plaintiff while he was discharging his duty, but that the
said conductor unmindful of his duty as aforesaid,
negligently went to some other point, and negligently failed
to take his position where he could direct the movements of
said train and prevent the same from running upon or against
the said plaintiff while he was in the discharge of his duty
as aforesaid, and by reason of such negligence of said
conductor, and while said plaintiff was making such
examination said train was rapidly and violently pushed and
shoved against the car that the plaintiff was in the act of
examining and caught the said plaintiff between said car and
the said train and so mashed and bruised his right hand and
arm as to require his right hand to be amputated, thereby
permanently disabling the said plaintiff, and rendering him
unable to labor for a long time, for, to wit, five months,
and for all time greatly impairing his capacity to earn a
livelihood, besides putting him to great expense in procuring
the proper medical attendance, and causing him to suffer
great mental and physical pain, all of which was to his
damage as aforesaid, wherefore, this suit."
After
the prefatory allegations, the third count of the complaint
continued as follows: "That it was the duty of said
plaintiff, prior to connecting said cars with said train, to
examine the same so as to know the kind and condition of the
drawheads, drawbars and coupling apparatus; and this
plaintiff undertook the discharge of his said duty and made
the said examination, and plaintiff avers that the said track
upon which the said car, being examined by him as aforesaid,
was located, was elevated above the ground, being built upon
a trestle, that in order to make the coupling with the same,
the train had to be run up a steep incline, that to make said
run at any other than a rapid and violent rate of speed
dangerous to the life and limb of those engaged in and about
the examination of said drawheads, drawbars and coupling
apparatus, and in and about the coupling of such cars, it was
necessary that not less than, to wit, six cars should be
placed behind the locomotive attached to the train to which
such coupling was to be made, so that while the rear end of
said train would reach the car to be coupled thereto, the
said locomotive would be at the foot of said incline and on a
level track. And plaintiff avers that the conductor in charge
of said train had been notified, prior to the 20th day of
November, 1894, that it was dangerous to undertake to couple
a car upon said track with a train with less than, to wit,
six cars behind the locomotive, and this plaintiff knew that
such notice had been given to said defendant, but
notwithstanding it had received such notice, the said
conductor negligently required the engineer in charge of the
aforesaid local freight train locomotive, to make said
coupling with only, to wit, two cars behind said locomotive,
and by reason of said negligent requirement, the engineer in
charge of said locomotive was forced to push and shove the
said train up the said incline and against the car that the
said plaintiff was in the act of examining, with such
rapidity and violence as to catch the said plaintiff between
the said car and the said train and so mashed and bruished
his right hand and arm as to require his right hand to be
amputated, thereby permanently disabling," etc.
In the
fourth count, the averments in reference to the negligence
complained of were as follows: "And plaintiff avers that
it became and was his duty as such brakeman to couple the
said cars standing upon said elevated track with the said
train, and that in order to make such coupling, it was
necessary for him to get in between the said cars and the
said train, and while in a position at said cars in which it
was necessary for him to be in order to make said coupling,
the engineer in charge of the locomotive attached to the said
train negligently caused the same to be pushed and shoved
against the car where plaintiff was standing in the discharge
of his said duty with such rapidity and violence as to catch
the said plaintiff between the said cars and the said train,
and to mash and bruise his right hand and arm as to require
his right hand to be amputated, thereby permanently disabling
the said plaintiff," etc.
In the
fifth count of the complaint, the averments as to the extent
of the negligence complained of were as follows: "The
plaintiff was at the time a brakeman in the employ of the
said defendant and was acting as such for said defendant on a
train for the carriage of freight running between the cities
of Montgomery and Opelika in the state of Alabama, and that
while plaintiff was so engaged on said train, it became
necessary to attach to said train certain cars upon an
elevated track at Sistrunk & Jordan's lumber yard near
Goodwyn's station, Alabama, on the line of said railway
between the city of Montgomery and the city of Opelika. And
plaintiff avers that it was his duty as such brakeman to
couple the said cars standing upon said elevated track with
the said train. That as said train was backing up the said
incline, plaintiff walked forward to said cars standing upon
said elevated track, and just before reaching said cars, and
when about twelve feet therefrom he noticed that the coupler
upon said car standing upon said elevated track, which was to
be coupled to said train was closed and was not in a position
for making the coupling; that he thereupon gave a signal for
the engineer to stop the said train; that the said signal was
given in time for said engineer to have stopped said train in
order that he might put the said coupler in a condition to
enable the coupling to be made; and it was necessary that he
should go upon said track to fix the same with his hands, and
for this purpose, he walked in between said cars to put said
coupler in position, and while in the act of attempting to
fix it so that the coupling could be made and without fault
on his part, said train ran against him and caught his hand
in between the said couplers on said cars, and plaintiff
avers that said engineer received the signal in ample time to
have stopped the said train before it reached the car that
plaintiff was...
