Highland Avenue Belt Railroad v. Walters

CLOPTON, J. Plaintiff’s intestate was, at the time of the injury, in the employment of the defendant in the capacity of yard-master and conductor. His duties were, to see all the cars that were loaded, and place them at points as directed, take all empty cars, and deliver to the roads to which they belonged, see the numbers of all cars, and return them to the superintendent every morning. While standing on a foot-board, in front of the engine, and which was fastened to the bumper by iron rods, and while the train of which he was conductor was passing a pile of coal placed close to the track, he was thrown from the foot-board, under the engine, and killed. The third and fourth counts of the complaint, which aver [441] that the injury was caused by a defect in the condition of the ways, are framed under subdivision one, and the first and second counts, which aver that it was caused by the negligence of a person in the employment of'defendant, to whom the superintendence of the road was intrusted, while in the exercise of such superintendence, are framed under subdivision two, of section 2590 of the Code. Contributory negligence is the main defense. All the assignments of error go to the giving and refusal to give charges. The court, in the general charge, instructed the jury: “Although a servant may continue in the business of the master, and continue to discharge his duties, after he has knowledge that the discharge of the duties will be dangerous to himself by reason of the negligence of the defendant; yet, if that danger is so apparent to him that he ought to know that injury to himself would be unavoidable from the continuance of the discharge of that duty, he would be guilty of contributory negligence in continuing to discharge that duty; but, if the danger is not so apparent that the injury appeared to be inevitable from a discharge of the duty, he would be justified in continuing in the service of the company, and continuing to discharge the duty assigned to him, notwithstanding he might know that it was simply dangerous to continue in the discharge of that duty.” The proposition of the charge is, that an employé’s continuance in a service known to be dangerous, discharging the duties growing out of his employment, does not constitute contributory negligence, unless injury appeared to be unavoidable. In M. & B. Railway Co. v. Holborn, 84 Ala. 133, we construed the employer’s .liability act, which, with some verbal alterations, comprises sections 2590-93 of the Code. In railroading there are known perils incident to the service, no matter how well constructed the plant, works and machinery may be, or how watchful and diligent the control and management of the trains. To these the statute has no application, and of these the employé takes the risk. When, however, an employé sustains injury in the cases and under the conditions specified in the statute, it operates to take from the employer the defense, that the employé impliedly contracts to assume the known and ordinary risks incident to his employment. To this extent, and to this extent only, is the common-law rule abrogated. By the provisions of the statute, the enrployer is answerable in damages, when the defect in the condition of the ways, works, machinery or plant arose from, or had not been discovered or remedied owing’ to the negligence of the employer, or person to whom is intrusted the [442] duty of seeing that they are in proper condition; and is exempted from liability, when, not being aware of the defect or negligence, the employé has failed to give information thereof within a reasonable time after discovering it. Under this construction, contributory negligence can not be imputed to an employé from continuance in the service after merely discovering a defect of negligence, though it may increase the risk of injury. Something more is requisite — concurring failure to give information thereof, within a reasonable time after knowledge of the defect or negligence, unless the employé knows that the employer or superior is already aware of' it. This is as far as we have gone in that direction. The rule is necessarily qualified by the nature of the right of action given to the employé — “as if he were a stranger— and by the reservation to the employer of the defense of contributory negligence. An employé is bound to use ordinary care for his own protection, and, except as otherwise provided by the statute, can not recover when one of the public, rightfully on the track, could not recover under like circumstances. While mere knowledge of a defect and its danger is not, of itself, contributory negligence, the fact, and the use made of that knowledge, are circumstances to bé considered on the question of negligence.—Wilson v. S. & N. R. R. Co., 85 Ala. 269; L. & N. R. R. Co. v Hall, 87 Ala. 708. Whether continuing in the service afier discovering the defect constitutes contributory negligence, depends in a great measure upon its nature and extent. Unquestionably, when the danger is so apparent that injury appears to be inevitable, the employé is not justified in continuing in the service. No man is bound to subject himself to certain and inevitable injury, endangering life, in rendering service to another. Continuance in service under such circumstances would be reckless, and, if death ensued, suicidal. But that the injury should appear to be unavoidable, is not requisite. When injury is imminent — when the appearance of injury is of a degree greater than that which produces the impression that injury may result; when it leaves no room for reasonable doubt — continuing in the service after knowledge of the defect causing the injury, and its nature and extent, must be regarded as contributory negligence.—Co. & West. Railway Co. v. Bridges, 86 Ala. 448. The general rule applicable in analogous cases is as definite as any we can lay down, consistent with the nature of the right of action of the employé, and the defense allowed to the employer. By this rule, an employé does not exercise ordinary care in not quitting the service when injury is so imminent and impending [443] that a prudent man would not continue therein under like circumstances. A corrollary from the rule that an employé is bound to use ordinary care to avoid injury is, that when there are two ways of discharging the duties incident to his employment apparent to the emyloyé — one dangerous and the other safe, or less dangerous — he must select the safe, or less dangerous way. M. & B. Railway Co. v. Holborn, supra. But this rule rests on the hypothesis, that he can perform his duties as well and efficiently in one way as the other. Neither is he required to leave the post of duty assigned by his employer, if by remaining at such place he would not be guilty of contributory negligence under the rules stated above. It may be conceded, that the burden is on the plaintiff to prove that the foot-board was intended for the yard-master and conductor of the train to stand on, or that he could not perform his duties with efficiency and promptness if occupying any other place. The evidence on these questions may be scant and slight, but it was admitted without objection, and proper to be considered by the jury, to whom the inquiries were properly submitted. There was also evidence that, the train had passed with safety the same place twice before on the morning of the day of the accident, and many times on previous days. Such being the state of the evidence, a charge may be refused, which withdraws from the consideration of the jury, whether the performance of the duties devolved on plaintiff’s intestate as yard-master and conductor, required him to stand on the foot-board, or that it was put there for that purpose, and the imminency of the peril. Unless the appearance was such that a prudent- man would not have stood on the -foot-board, decedent was not required to leave his post of duty and seek a place of safety, merely because he knew that the obstruction was dangerous. The foregoing observations are based upon the hypothesis, which there is evidence tending to show1, that plaintiff’s intestate notified the superintendent, some two weeks previously, of the existence of the obstruction, and he failed to remove it. If, however, Peebles, to whom the coal was consigned, in unloading the cars threw it out at that place with the permission of decedent, he has no cause of complaint. An employé can not. create, or consent to the creation of a defect, and hold the company answerable in damages for any injury caused thereby. In such case, he voluntarily assumes the risk of the peril — volenti non fit injuria. The evidence as to the length of time the coal had been there was variant. In such case, it is not proper to state in a charge the testimony of Peebles eo nomine, and also that it. is undisputed, and predicate thereon the propo [444] sition, that if the jury believe his evidence the plaintiff cau not recover. Such a charge singles out the testimony of one witness, and gives it undue prominence, and is argumentative in its nature. On the other hand, though the coal may have been put there by Peebles in the prosecution of his business of brick-making, it constituted a defect in the condition of the ways in the meaning of the statute; and if put there without the permission of decedent, and the defect was not remedied within a reasonable time after notice, and there was no contributory negligence under the rules we have laid down, jdaintiff is entitled to recover. The general rule is, that courts will take judicial notice of matters of common knowledge and general notoriety. There are some matters connected with the running and operation of trains of which 'courts will take judicial notice, such as the place of the engineer and fireman; but we are not aware that the foot-board in front of a shifting engine is the post of duty of the yard-master and conductor, is a matter of common knowledge and general notoriety, though it may be known to railroad officers and employés, and persons who frequent stations where such engines are employed. Courts will not take judicial notice of the rules and regulations of a railroad company. Also, if the matter is of such character that it is judicially known to the court, the fact is not a question for the jury.—89 Amer. Dec. 696. It follows from the foregoing, that the court erred in giving the general charge, and each of the three charges requested by plaintiff. We discover no error in refu sing the charges reques ted by defendant. Reversed and remanded.