Woodward Iron Co. v. Herndon

• Decision Date: 15 May 1901
• Parties: WOODWARD IRON CO. v. HERNDON.
• Court: Alabama Supreme Court

30 So. 370

130 Ala. 364

WOODWARD IRON CO. v. HERNDON.

Supreme Court of Alabama

May 15, 1901

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by Thomas H. Herndon against the Woodward Iron Company. Verdict for plaintiff for $6,000, and defendant appeals. Reversed.

The complaint contained many counts. In some of the counts the negligence complained of was that of the engineer in charge of a switch engine operated in the yard of the defendants, in failing to ring his bell or blow his whistle as said engine which was propelling a car in front of it, passed along the track of the defendant, by the side of which were coke ovens and from which coke ovens a dense smoke covered the track which made it impossible to see an object on the track even a few feet distant. In other counts of the complaint the negligence complained of was that of the superintendent in failing to keep a flagman along the portion of the track where the collision occurred, and which was covered by the dense cloud of smoke. It was shown that the accident occurred on January 11, 1894. At that time the defendant was engaged in manufacturing pig iron, and in connection with this business was operating coke ovens, and operating a railroad from its furnace to its coal mines, and that on said railroad there were run lever or hand cars, and also engines, cars and trains. The plaintiff was employed by the defendant as a section foreman of a squad of hands engaged in track repairing. On the day of the accident a train operated on the road of the defendant came from the mines to the furnace. This was about 12 o'clock in the day. Just behind this train, the plaintiff's intestate and his squad of hands were on a lever or hand car going into the furnace, as (there was some evidence tending to show) was their custom at that time of the day. Along the side of the track upon which the train and hand car were going into the defendant's yard at the furnace, there was a battery of coke ovens, the smoke from which often covered the track; and at the time the accident happened the smoke was so dense that it totally obscured the track for a distance of 200 or 300 yards. Just before reaching the smoke that covered the track on which the incoming train and the hand car would pass, there was a curve in the track, and an embankment, which prevented the plaintiff's intestate from seeing said train, and the train passed through the smoke onto another track beyond the coke ovens. At this time the switch engine, pushing a gondola or flat car, came from a side track onto the main track, on which the incoming train had passed and the hand car was approaching, and started through the smoke. Said switch engine had passed about half the length of the battery of coke ovens when it collided with the hand car on which the plaintiff's intestate was riding, and in such collision the plaintiff's intestate was killed. There was evidence tending to show that the hand car was running at the rate of 10 or 12 miles per hour, and that the switch engine, at the time of the collision, had attained a speed of from 8 to 10 miles an hour, but that the proper and customary speed for the switch engine at the place of the collision was 2 or 3 miles an hour. There was evidence tending to show that the defendant's trains were run in the yard without schedule and that the engine which collided with the hand car started down the track immediately after the incoming train went onto the other track, and that if said engine had come down the track at the speed of 2 or 3 miles an hour the hand car would have gotten through the smoke to a place of safety or where the collision would have been averted. The testimony as to the distance between the incoming train and the hand car following it, at the time the train entered the smoke, was conflicting; but there was some evidence tending to show that the plaintiff's intestate knew how close the hand car was to said train. The present is the second appeal taken in this case. Iron Co. v. Herndon, 114 Ala. 191, 21 So. 430. The facts of the case on the present appeal are substantially the same as those adduced on the other trial, and special reference is here made to the statement as contained in the report of the case, and it is, therefore, unnecessary to set out at length the facts adduced on the present trial. The bill of exceptions is very long, and contains the stenographic report of the evidence in the case.

Upon the introduction of all the evidence the defendant requested the court to give, among others, the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "I charge you, if you believe the evidence, that your verdict must be for the defendant." (6) "If you believe, from the evidence that when the hand car reached the dense smoke the coal train had gone entirely through the dense smoke, and had gone beyond the nearest switch to the end of the coke ovens nearest the office, you must find for the defendant." (7) "If you believe, from the evidence, that when the coal train was about 140 yards from the dense, thick smoke, the hand car was about 470 yards behind the coal train, that at such time the hand car was running at the rate of about 10 miles an hour and the coal train was then running at the rate of about 6 miles an hour, and if you further believe, from the evidence, that it was about 140 yards through this dense, thick smoke, then I charge you that you must find that Neal was guilty of negligence in not stopping the car and in not sending a flagman ahead of the hand car through the smoke, and you must find for the defendant." (8) "That if the jury believe, from the evidence, that the plaintiff's intestate was in the employment of the defendant as foreman of the section squad, and that he knew or was informed that it was the duty of such section foreman, when running a hand car on the defendant's railroad, to look out for the trains and to keep out of the way of trains on said road, and that there was no schedule for running the road engine from the furnace to carry empty cars to the coke ovens, and on the day he got hurt the hand car was so far behind the coal train that the yard engine could and did pass along the track by the coke ovens before the hand car got through the smoke, then the verdict of the jury must be for the defendant." (9) "If you believe, from the evidence, that the switch engine was liable or likely to get on the main track through a switch about 23 feet from the edge of the thick, dense smoke nearest to the office, I charge you that Neal was guilty of negligence if he did not consider this in determining the necessity of stopping the hand car and sending a flagman ahead through the smoke." (10) "If you believe, from the evidence, that the switch engine at and before the collision was running at its customary speed, you must find for the defendant." (11) "If you believe, from the evidence, that the switch engine at and before the collision was running at a speed not greatly in excess of the usual and customary rate of running the switch engine, you must find for the defendant." (12) "I charge you, gentlemen of the jury, that if you believe the evidence in this case you must find that Neal was negligent in...