St. Louis & S. F. R. R. v. Fancher

McCLELLAN, J. — When the former appeal in this case ivas before the Court of Appeals (1 Ala. App. 295, 55 South. 458), it was ruled that the appellant, the company, was erroneously refused the general affirmative charge in its favor, for that the eAddence established, without conflict, that the plaintiff (appellee) was guilty of contributory negligence in consciously allowing his hand to remain in such a position upon the draAAdiead of the engine as that his hand was caught in the impact of that draAvhead Avith the drawhead on the flat car. The conclusion there prevailing cannot now prevail, for the evidence on the trial succeeding the reversal by the Court of Appeals was materially different, particularly in respect of the plaintiff’s opportunity and ability to remove his hand after the engine again began to move toward the flat car, and before it could be caught in the space; both the opportunity and the ability to so govern [191] his actions being immediately affected by tbe proximity of tbe two drawbeads to each other and plaintiff’s knowledge of tbe fact that tbe engine was in motion in time to enable him to remove bis band before it could be caught between tbe drawbeads. Tbe trial court properly declined to take from the jury tbe solution of tbe issue of contributory negligence vel non. Belated considerations justified tbe trial court in refusing charge 2, requested by defendant. That instruction possessed tbe fault of omitting to hypothesize a retention, by plaintiff, of bis band on tbe “knuckle,” while tbe engine was approaching tbe flat car, after be Imew tbe engine was moving to a second effort to couple to tbe car. If tbe drawbeads were only a few inches apart, as plaintiff testified on tbe trial after reversal, it is readily conceivable that opportunity to remove tbe exposed band might not have been present after tbe engine was put in motion. Charges 3 and 4 were properly refused to defendant. Both were weil calculated to confuse tbe jury. They are uncertain and involved in respect of tbe occasion and tbe time with reference to which it is said therein there was no basis in tbe evidence to authorize a finding that tbe engine could have been stopped. No error appearing, tbe judgment is affirmed. Affirmed. Anderson, C. J., and Sayre and de Graeeenried, JJ., concur.