Beyer v. Louisville & Nashville Railroad

HEAD, J. — G. H. Herrin was an employe of the appellee company, having charge of the operation of the pump-at Phelan’s station, used for filling the tank there, from which the locomotives, on the road, were supplied with water. The company had in its employ a pump repairer whose duty it was to make all repairs on the pumps which Herrin, himself, could not make, and he had a general pass to ride on all trains in the discharge of his duties. Herrin had no authority to employ special workmen to make such repairs, except at his own expense. The pump at Phelan’s becoming out of order, Herrin, without special authority, employed the plaintiff’s minor son, Joe Beyer, who was a mechanic residing at Cullman, on the line of defendant’s road, about two miles from Phelan’s, to repair it. To reach Phelan’s, for the purpose of doing the work, Beyer, in company with one George Shelton, who had formerly been a brakeman on defendant’s road, boarded a freight train of defendant at Cullman. The train consisted of a locomotive and twenty-two cars, with caboose in the rear. It did not carry passengers, and did not ordinarily stop at Phelan’s. At Cullman it did not stop, but, when these parties got aboard, it had reduced its speed to that of about a man’s walk. Beyer got on at about the fourth car from the locomotive and took his position on top of that car (a box car) , sitting on the edge with his feet downward on the side. Shelton got on the, fifth car, but did not remain there but passed down, from one car to the other, until he reached and took his position [428] on the caboose. After going a short, distance (about one-fourth of a mile) the conductor (presumably in the caboose) asked Shelton where they were going. Shelton replied, “To Phelan’s to fix the pump.” The conductor responded, “Go tell the engineer,” to which Shelton rejoined, “That is your business.” Shelton further testified: “I told Bob (the conductor) where we were going, and he said he was going through there like hell scorching a feather.” It does not appear that the parties boarded the train by authority of the conductor, or any one else. The train ran about fifteen miles (Beyer being still in his position on top. of the box car), when, for some cause unknown and unexplained, (except such explanation, if any, as may be inferred from what will presently be stated in reference to the manner one of the cars was loaded with pipe), it became derailed, causing its wreck, and by which Beyer was so injured that he died. The last five cars and the caboose remained on the track, and no one on or in them was injured. Touching the cause of the derailment, the only evidence introduced proceeded from Shelton who was examined by the plaintiff and who testified as follows : “One of the cars on the train was loaded with sewer pipes. They were about 24 inches by 12 feet long, they were loaded endways of car, held on by standards ; one standard was out on left side of car just ahead of the box car where Beyer was. This standard was gone before we got to Phelan’s; there were three brakemen on the train; we lost one of these sewer pipes between Cullman and Phelan’s. I said ‘Bob (meaning the conductor) you ought to stop this train and fix that car.’ I told Bob the condition of the load on the flat car and that he had better stop, and he said ‘damn the sewer pipes, I am not going to stop this train.’ I told him I would not ride behind a car in that condition. I jumped off and fell. One piece of the pipe was ahead of the other in an angle with the car; a car is thirty feet in length; a sewer pipe is twelve feet long. One of the pipes that was in the car got crossways and fell off between Cullman and Phelan’s. The standards were on this car tg keep pipes on with ; when the standards were lost out there was nothing to keep pipes from rolling off.”, Shelton testified that he got off the train at [429] Cooper’s Gap, but- there is no evidence to show how far that is from the place of derailment. Further than as -above stated there was no effort to prove that the sewer pipe, or the condition of the car containing-it, in any way contributed to the derailment. There was controversy between the parties as to the relation the deceased, Beyer, bore to the defendant whilst riding upon the train, and when injured — the defendant insisting that he was a trespasser, and the plaintiff that he was authorized and permitted by the defendant to ride upon its train for the purpose of fixing the pump ; and the plaintiff attempted by sundry questions put to the witnesses, to show that, by custom on defendant’s road, pump repairers, though specially employed by pump keepers to make particular repairs, were authorized to ride to the work on defendant’s trains ; and errors are assigned upon the refusal of the court to allow these questions. We are of the opinion that it is not material to consider whether the deceased was a trespasser, a passenger or a licensee. If he were a trespasser he could not recover, except for a wanton or willful injury done him; if a passenger or licensee, he had no authority to take the extraordinarily dangerous position he did take on the train, instead of taking passage in the caboose, the appropriate and safer place for such persons ; and in doing so he was, upon the undisputed evidence, guilty of negligence contributory to his injury, which was put in issue by appropriate plea; and he could not recover except on pleading and proof that the injury was wantonly or willfully inflicted. — Brown & Co. v. Scarboro, 97 Ala. 316. The last count of the complaint, introduced as an amendment, charges, not only simple negligence, but, in the alternative, that the injury, was caused by wanton or willful misconduct. No objection was made by demurrer, or otherwise, to the sufficiency of the count in this respect. So, the inquiry is, whether the evidence (all of which, upon which plaintiff relies, is hereinabove set out) tends to show such wanton or willful misconduct. Upon plain principles, we think it does not. The evidence consists alone of the testimony of Shelton, as •above quoted, concerning the car loaded with sewer pipe. Upon examining his testimony closely, it will [430] be seen, that the witness does not testify, even, that the condition of the car was dangerous or at all liable to cause a derailment, or other injury to the train. He repeats, simply, what he said to the conductor in the car, and the conductor's reply; affirming no fact tending legitimately to establish that the car was dangerous to the train, much less than that the conductor was guilty of a wanton and willful disregard of the safety of the train and of the lives of himself and others riding thereon. So far as any facts brought to view show, the apprehensions of Shelton, indicated by what he said to the conductor, may have been entirely unfounded, and the conductor justified in paying no attention thereto. If there had been evidence going to , show that the condition of the car was manifestly dangerous to the safety of the train, what Shelton said to the conductor might .have been very material as notice to him ; and our conclusion might be different. Again, as we have already said, there is not a semblance of evidence tending to establish the relation of cause and effect between the condition of the car and the derailment. The complaint alleged that the latter was caused by a pipe falling off, when the car was crossing a bridge, but there was no effort to prove the allegation. It follows, necessarily, that the court was compelled to give the general charge requested by the defendant. . It is a wise and just rule, firmly established by our decisions, that errors of the trial court which are affirmatively shown by the record to have done the appellant no harm, will not operate to reverse the judg.ment. We have carefully examined every question raised by the record touching the rulings of the court, either upon the pleadings or admission of testimony, and the conclusion is irresistible that the rulings were either correct, or, if they had been to the contrary, and in favor of the plaintiff, the result of the trial would, necessarily, have been as it was. In no phase, in which the case was presented, or attempted to be legally presented, either upon the pleadings or proof, could the defense of contributory negligence, arising upon the undisputed. evidence, have been obviated. We will not encumber this opinion by a statement of the questions in detail, as they are governed by well settled principles, .which \t would serve no useful purpose to repeat; . Affirmed.