Kansas City, Memphis & Birmingham Railroad v. Flippo

DOWDELL, J. This is a suit brought by the appellee against the appellant Railroad Company, to recover damages for personal injuries received while in the discharge of his duties as a brakeman, by reason of the alleged negligence of the defendant. The complaint contained six counts, the first four being predicated upon a violation by defendant of an act of Congress, approved March 2d, 1893, known as the Safety Appliance Act, and entitled “An act to promote the safety of employes and travellers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers,” etc., and, the last two being for alleged negligence arising under our statute, known as the employer’s liability statute. The complaint and each count thereof was demurred to by the defendant, and the demurrers were overruled. On this raling of the court, the assignments of error numbered from one to seven, inclusive, are based. It is a well established rule of law that the violation of a statute by a railroad company in the operation of its road and trains constitutes an act of negligence for which a liability becomes fixed upon the company when injury to a person results as the proximate consequence of such'negligence. The courts of the. country take judicial notice of the act of Congress, known as the safety appliance act, and where the complaint avers a state of facts, which show a failure on the part of the rail-read company, to comply with the requirements of (die statute, this is sufficient; it not being required to plead specially a general statute. The obpection raised to the several counts because of the generality of the averments of negligence, is untenable. As said in Ga. Pac. P. R. Co. v. Davis, 92 Ala. 307, where many of our cases are cited, and which have been followed in more recent decisions, “under our system of pleading very general averments, little short indeed of mere conclusions, of a want of care and consequent injury, leaving out the facts which constitute and go to prove the negligence, meet all the requirements of the law.” When tested [499] by the rule laid down in these cases, the complaint was not open to the demurrer on the ground therein stated, and no error was committed in overruling the same. The defendant filed a number of pleas, all and each of which purported to be filed to the complaint as a whole, as well as to counts severally named. Demurrers were interposed and sustained to pleas three and four. The 3d plea set up as a defense the assumption of risk by the plaintiff. This could not be pleaded as to those counts, which were based upon the act of congress above mentioned, known as the safety appliance act, since this statute in terms provides that in cases arising under it from a failure to comply with its provisions, the employe shall not be deemed to have assumed the risk of the employment. The 4th plea, if taken as setting up assumed risk, was for the same reason bad, and if taken as setting up contributory negligence, it was faulty, in failing to aver in what the contributory negligence consisted. It cannot be affirmed to be negligence per se for a brakeman to go in between the cars and engine to make a coupling, and this, in effect, is what'is alleged as the negligence in plea 4. The assumption of risk as a matter of defense, is one that arises out of the contract between the parties, and we see no reason why it is not as much within the legislative* competency of the Congress of the United States when legislating as to interstate commerce — a matter exclusively within its power under the Federal constitution — to say that the common carrier, when engaged in interstate commerce, failing to comply with the provisions of the state, may not avail itself of the doctrine of assumed risk, as it, the Congress, has to provide for regulations with which a compliance is required. We see no merit in the suggestion in argument by counsel for appellant along this line. There was no error in sustaining the demurrer to this plea as originally filed. The pleas were subsequently amended and limited to the 5th and 6th counts, and issue was joined on them along with other pleas. On the trial, the -5th and 6th counts of the complaint were'’eliminated by charges of the court given at the in [500] stance of the defendant, and we, therefore, take no notice of the rulings of the trial court on the pleadings relative to these counts. It remains to be considered whether any error was committed in the giving and refusal of charges under the other counts. The evidence was, that the defendant operated a railroad leading from Birmingham, in Alabama, to Memphis, in Tennessee; that the plaintiff was in its employment and service as a brakeman, and while in the act of coupling a car to a switch engine, he was injured by having a finger crushed, which necessitated amputation. The evidence also, without conflict showed, that at the time of the accident, the car and engine were at No. 5 mines, about a mile vest of Carbon Hill, Alabama. Carbon Hill being a station on defendant’s main line, and No. 5 mines being connected with the main line at Carbon IT ill by a spur track. The car at the time of the accident was being switched at No. 5 mines preparatory to being carried to Carbon Hill by the switch engine, (used by the defendant between said points), preparatory to being shipped hv regular train over the main line. This switch engine never went any further than Carbon Hill, and was not used for any other purpose than that of a switch engine; it was not used on the main line, but merely for carrying cars to the depot at Carbon Hill from the mines, and then placing the car's on a storage track at Carbon Hill, to be taken from the storage track and put on a special siding, and from that siding they were taken by regular trains to the point of destination. It is further shown by the evidence and withopt dispute, that the car after it had been loaded at the mines and put on the storage track at Carbon Hill, was thereafter billed and shipped from Carbon Hill to Aberdeen, Mississippi, by the Galloway Coal Company, which company owned No. 5 mines. The car was an Illinois Central car and numbered 75,308. It was shown also that cars of coal were sometimes billed from the mines and sometimes from Carbon Hill. It, therefore, appears from the evidence without dispute, that the car, when the accident happened, was on the spur track [501] of the defendant, about a mile from the main line, and there is nothing in the record to show that any instructions whatever had been given by the shipper before the car reached Carbon Hill as to its destination or intended destination, but that it was placed upon a storage track by a switch engine, which was used for no other purpose, where it was left, and afterwards it was made a part of a regular train and carried to Aberdeen, Mississippi. For aught that appears in the record, the car of coal at the time of the accident, while still at the mines, might hare been intended for shipment by the owners, the Galloway Coal Company, to some point within the State. In the opinion of the writer, the evidence affords no legitimate inference to be drawn by the jury, that the car, at the time of the injury, was being used in the transportation of interstate commerce. The other members of the court, however, do not concur in this view, but are of the opinion that upon the whole evidence, the question as to whether the car was at the time being used in interstate commerce, should have been left to the determination of the jury. The undisputed evidence, however, was that the car in question, was equipped with appliances as required by the act of Congress, that is to say, with automatic couplers, and under the averments of the complaint, that the cars were not equipped with automatic couplers, evidence merely of a defect in such couplers, would not support the averment. The defendant, therefore, was on this undisputed evidence, entitled to the general charge requested as to the counts based on said act of Congress, and the court erred in refusing the same. The remaining count No. 5, upon which a trial was had, counted on a defect in the draw head of the car, as being the proximate cause of the plaintiff’s injury. While the plaintiff’s evidence as to the draw head of the car being defective, was not altogether clear and satisfactory, yet it was sufficient, to require a submission of that question to the jury — and this being true the affirmative charge requested as to this count was properly refused. The evidence as to whether the defective [502] draw head was solely the .cause of the injury, or that the contributory negligence pleaded proximately contributed to the injury, was not wholly free from conflict, and it was, therefore, proper to submit the question to the jury. There were other charges asked and refused, and to which exceptions were reserved, and also exceptions taken to certain portions of the oral charge of the court, but the view we have taken, and what we have already said, renders it unnecessary to consider in detail such other exceptions. For the errors pointed out the judgment will be reversed, and the cause remanded. Reversed and remanded.