Davis v. Western Railway

HARALSON, J. 1. We all know, while it is not necessarily or inevitably a perilous thing, under any circumstances, for a switchman to go in between the cars of a moving train to uncouple them, that generally speaking, it is a habit attended with more or less danger. There was no proof on that subject on the trial of this cause. But, common experience teaches us that there are perils attending such a custom, and the books abound with instances illustrative of it. It is of general notoriety, and we may, therefore, take judicial notice of the fact, that the dangers of such a practice are so well recognized, that many railroad- companies have deemed it necessary to promulgate rules forbidding it. The evidence in this case tends, without conflict to show, that the two cars between which plaintiff was injured, were double deadwood or buffer cars, obviously more dangerous to go between for the purpose of coupling or uncoupling than between the cars not having the double dead-woods. He testified, when he started to uncouple the cars, he got one foot on the inside of the track,,and holding on to the corner of the car in front of him with his left hand, leaned his body towards the centre, and took hold of the pin with his right, and had hold of it, when the slack was given, — and the front car, or the one behind him,. struck him and knocked him against the deadwoods, — which were necessarily between him and the drawhead, — and the sleeve of his coat was caught between the drawheads. This shows that the deadwoods were on the one side and the other of the drawheads, and were of the double pattern. In the L. & N. R. Co. v. Boland, 96 Ala. 626, in speaking of cars of this pattern, and of the dangers of coupling them, we said, that the double deadwoods were so located with reference to the drawhead that it was itnpossible to see one without the other ; that they were on each side of the drawhead, and a view of the buffers and drawhead, as attached to the car, should be sufficient notice to a man of average intelligence of the risk incident to the coupling of such [631] a car; that ordinary observation could, not fail to disclose to a brakeman tlie difference between these and other cars without the double deadwoods, and that a higher degree of care was necessary to be exercised in coupling them. The plaintiff in this case was -a man, as shown, of thirty years of age, and had been employed in the business of switching cars and working on railroads for about nine years ; had been working in defendant’s yard about a year, and must have had full knowledge of the dangers attending the service. The evidence further shows, that the track at the place of the accident, was either down grade, in .the direction the cars -were moving, or that they had been given such a shove or kick, —in bringing them; by order of the plaintiff, onto this track from another, — as that they were moving more rapidly than the engine. The draw was taut, at the time, so that it became necessary, in giving the slack, to enable the pin, coupling the cars, to be removed, to propel the engine backward, faster than the cars were moving, in order to run them together, and thus give the necessary slack to admit of the desired uncoupling. The plaintiff makes this plain. The cars were moving backwards, towards the north, when plaintiff went between them. He was on the left hand side of them. He says, “I went in between the cars and caught hold of the pin, and as I did so, the engineer gave the slack, which means driving the cars together, and the front car struck me. * * I mean by slack, that sometimes it is necessary to shove the cars together, so as to get the pin out.” It is evident, that when an engine is shoving cars, the'deadwoods are already together, and the slack is already on, so that the coupling pin, without more, can be removed. The very opposite of this was the condition of this train. The cars by impetus of a down grade, or by a kick or running switch, as it is sometimes called, were pulling against and not being propelled at the time by the engine, and the draw was taut. When the plaintiff went between the cars, he says he did so without having first given the signal to the engineer to slack. This he ought to have done, for he says, £<It is the custom of the switchmen to give the signal for the slack, before going in between the cars. * * * It is always safer to give the engineer a signal [632] to let him know when a switchman is goiug in between the cars, and to have the slack made before going in between them.” He also testified, that the engineer was looking at him, when he went to uncouple the cars, and he gave the slack, “this time, harder than was necessary.” As soon as plaintiff’s sleeve was caught by the drawhead, he says he signaled the engineer to stop, and continued to do so, until the cars did stop; they had moved about one car length when his arm was drawn between the deadwoods, and two or three lengths before they stopped. What particular force it was necessary for the engineer to have given his engine, to overcome the forward impetus of the cars ahead of him, it is impossible to tell, and he must not have known, exactly. Just the amount necessary to relieve the tension and allow the uncoupling to be done, however, was what was necessary, and this he undertook. Under the circumstances, when this was accomplished, if necessary to withdraw the force, by stopping the engine, the plain-' tiff was in position to know, and to signal him to that effect. Why should not the engineer have continued the application of the force designed to relieve the tension at the drawhead, until warned by the brakeman that it was overcome, and the uncoupling effected? That the engineer acted with promptness is made clear by the evidence of the fireman, Harris, introduced by plaintiff, who had had thirteen years experience in the business. He deposed, that he did not see the plaintiff go in between the cars, but he saw him give ■ the signal to stop; that the engineer saw this signal also, and put on brakes and stopped the engine just as soon as possible ; that he saw nothing wrong about the engine, but it slipped a little after the brakes wpre put on, but this was on account of the dew on the track. He repeated, “The engine was stopped as qüick as possible when the plaintiff gave the signal. ’ ’ • The plaintiff’s own evidence, therefore, fails to show that the engineer was guilty of any violation of duty on the occasion, but it does make it clear, that in going in between these cars, having double deadwoods, at the time and under the circumstances he did, he was guilty of undertaking an obvious peril, in violation of a known custom among brakeman, — to signal for a slack before undertaking it, — which he admits was always safer to [633] bo done. We have heretofore said, that the act of uncoupling cars while in motion, by going in between them, does not necessarily constitute contributory negligence, under all circumstances, (M. & C. R. R. v. Graham, 94 Ala. 553) ; but it is certainly a hazardous business, at best, and one which, in favor'of human life and limb, ought to be discountenanced. If ever justified, however, it certainly could not be done under the circumstances of this case. 2. The plaintiff in this instance, seeks to justify his assumption of the dangers he encountered in going between the cars of this moving train to uncouple one of them, on the ground that he was directed to do so, by the foreman, whose orders he was bound to obey. But, this is a misconstruction of the order. The foreman, as the evidence shows, at the time he directed the plaintiff to uncouple the car, was five or six car'lengths away from and ahead of plaintiff, and the order, after gaining plaintiff’s attention, -was simply, to “cutoff one car:” It is not shown that there was any emergency attending the order. It was at a time and place, when, it may be reasonably inferred, there was no necessity for any haste, or the assumption of any danger by plaintiff, in complying with the order. To have obeyed the order, it does not appear there was any necessity for plaintiff to go in between the cars, when they were moving. Without any unnecessary delay, the train could have been brought to a standstill, and the order of the foreman strictly and promptly obeyed, so far as appears, without any danger to plaintiff. Unless the order itself, implied to the contrary, — and its terms and the circumstances do not do so, — we are to presume it was intended by the foreman, that the plaintiff should comply in a manner safe to himself. — Richmond & Danville R. Co. v. Bivins, 103 Ala. 142; Pennsylvania Co. v. Hankey, 93 Ill. 583. And if the plaintiff knowingly selected a dangerous way, and a safer one was apparent and open to him, and he was thereby injured, he is guilty of contributory negligence and cannot recover. — Bivins Case, supra; Railroad Co. v. Orr, 91 Ala. 548; Railroad Co. v. Holborn, 84 Ala- 137. 3. If the order given by the foreman, however, were construed as one to the plaintiff to uncouple the cars while in motion, it may be said, that plaintiff was un [634] der no obligation to obey it without assuming the risk himself, if by so doing, he incurred the risks of obvious peril, such as a reasonably prudent man would regard . as extra hazardous. That plaintiff did incur such risk is beyond question. — Rome &, Decatur R. R, Co. v. Chasteen, 88 Ala. 592 ; Kansas City M. & B. R. R. Co. v. Burton, 97 Ala. 254; Delvin v. R. R. Co. 87 Mo. 545; R. R. Co. v. Bartee, 5 Ohio St. 541; Wood's Master & Servant § 387. This case furnishes another instance of a railroad employe, who, as his length of service and skill increased, became the more careless, in assuming risks, which, in the beginning, ho would have avoided. There is no evidence tending to show that the engineer or fireman was guilty of wilful, wanton or intentional negligence, and even, if either of them, or the company was guilty of any simple- negligence in the premises, the plaintiff, on account of his own negligence, contributing proximately to the injury he received, cannot recover. The court did not err in giving the general charge for the defendant. In the view we take of the case, it is unnecessary to consider other questions reseiwed. Affirmed.