Austin v. Mobile & O. R.

Holden, J., delivered the opinion of the court. The appellant, W. A. Austin, administrator, brought this suit against the appellee, railroad company, for the death of W. G. Austin, alleged to have been caused by the negligence of the railroad company. At the conclusion of the testimony a peremptory instruction to find for the defendant was granted by the court; from which judgment this appeal is prosecuted. The case, in substance, is this: The deceased Austin while engaged in his work as a switchman in the railroad yards at Columbus was riding on the front end of a flat car which was being pushed ahead of five other flat cars by the engine up the main line track intending to place the cars on a spur track, and, while the cars were being thus pushed ahead of the engine up the main line, a cow made an effort to cross the track in front of the train. The deceased and the conductor were standing close together in the front end of the front car at the time, and in order to prevent striking the cow the conductor signaled the engineer, who could see him from the engine window, to immediately stop the train, whereupon, in compliance with the signal to immediately stop, the engineer applied the brakes to his engine and suddenly stopped, causing the slack to run out of the six flat cars, and the sudden stop or jerk precipitated the deceased over the end of the front car, which 'ran over and killed him. The evidence is conflicting in some respects regarding the position of the deceased and that of the conductor, [231] but taking tbe testimony favorable to tbe appellant as being true, it appears the deceased was standing somewhere near tbe front end of tbe front car in tbe train that was being pushed by tbe engine, and that bis back was to tbe engineer, and tbe conductor was'near and behind tbe deceased, tbe conductor being between the deceased and tbe engineer. The engineer gave no signal or notice that be was about to make tbe sudden emergency stop. The speed of tbe train is not involved in tbe case. Tbe declaration of tbe plaintiff below contained four counts, and we have given careful consideration to each of them, and we are convinced there is not sufficient merit in any one of tbe last three counts to warrant a discussion of them in this opinion. Tbe first count in tbe declaration, however, has given us considerable trouble in determining whether or not tbe testimony in tbe case supported tbe ground of negligence alleged therein, and whether or not tbe lower court was correct in granting tbe peremptory instruction in favor of tbe railroad company. Tbe first count puts tbe negligence of tbe railroad company upon the ground that, at tbe time the engineer made the sudden or violent stop without giving notice or warning to tbe deceased, be (tbe engineer) could see tbe deceased standing at tbe front end of tbe front car in a position of peril, and that be knew, or ought to have known, that a sudden application of tbe emergency brakes would suddenly stop tbe cars and precipitate tbe deceased over tbe end of tbe car to bis death. This count in tbe declaration was not specifically drawn so as to clearly present tbe ground of negligence named, but we gather enough from it to satisfy us that it sufficiently alleges negligence by failure to warn tbe deceased when tbe engineer could see bis position of peril. After an extended and patient examination of tbe proof in this record we have reached tbe conclusion tbe proof [232] does not sustain this count of the declaration. We are unable to see wherein the engineer was guilty of negligence in making the sudden stop under the circumstances shown in the record. The cars were being pushed forward by the engine and the deceased was standing at the front end of the front car. The conductor was also standing near and back of the deceased. When the cow attempted to cross the track in front of the moving train, it was the duty of the conductor and the deceased, both of whom could see the cow, to signal the engineer to stop quickly. The conductor did signal the engineer for an emergency stop,, and it was the duty of the engineer to comply with the signal and make the sudden stop with the emergency brakes. It is not definitely shown in the record how close the deceased was to the end of the car, nor is it disclosed by the proof, either direct or inferential, that the engineer from his position could see the distance of the six car lengths and realize that the deceased was in a position of peril, if he in fact was in a perilous position, at the time the emergency brakes were applied. It was not shown that the deceased did not know the sudden stop would be made, nor was it proven that the engineer knew or should have known that the deceased was not prepared to brace and protect himself against the effect of the sudden stop. The engineer was duty bound to respond to the stop signal of danger given by the conductor, and it was reasonable for him to assume that the deceased would protect himself against the ordinary hazard incident to such sudden stops. Furthermore, the record fails to disclose any testimony showing how the engineer was negligent in failing to warn the deceased before making the sudden stop. The evidence does not show what kind of notice' or signal the engineer was in duty bound to give the deceased before responding to the signal given by the conductor. Was he to sound a blast of the whistle? It is not shown. [233] Was the engineer under duty to make a slow stop so as not to cause the jerk or jar when the conductor had signaled for a quick and violent stop? We find no testimony in the case showing what should have been done by the engineer under such circumstances to warn the deceased. It may be well argued that if the deceased was standing close to the edge of the front end of the car, and the engineer from where he was could see and know that a sudden stop would precipitate the deceased over the end of the car and kill him, and the engineer realized the perilous position and knew or ought to have known that the deceased did not know a sudden stop was going to be made under the circumstances, then a different question as to the negligence of the engineer might arise. But the plaintiff below failed to show that the engineer saw and realized that the deceased was in a position of peril requiring warning at the time he made the sudden stop in compliance with the signal given by the conductor. It is a well-settled principle of law that the employee assumes the ordinary risks and dangers incident to his employment. This record discloses without dispute that the deceased switchman was familiar with the risks of sudden stops, and that from knowledge and experience he would be expected to protect himself against the danger of such emergency stops. And it is especially true in this case that the deceased ought to have protected himself against the sudden stop, because he was on the front car close to the conductor and must have seen the danger of the cow attempting to cross the track and ought to have known a quick stop would be made by the engineer to prevent striking the cow. It is true the proof shows the deceased’s back.was toward the conductor who gave the stop signal and toward the engineer who made the stop and that the engineer saw him. Nevertheless deceased was there and knew, or should have known, what was going on and ought to have [234] anticipated the sudden stop made by the engineer. The engineer testified that the deceased himself gave the signal to make the sudden stop. This was disputed by a witness and of course' we are assuming for the sake of discussing the question of the peremptory instruction that the deceased did not give the stop signal and that he did not see the conductor give the signal because his back was toward the conductor and the engineer at the time. However, as we have said, the engineer back in his engine some three hundred feet away did not know and realize that the deceased was so close to the edge of the car that a sudden stop would jerk him over the end of it, nor that he would not protect himself against the sudden stop. It is not clear from the proof that the deceased was in fact in a position of peril, unless it was as an incident to his employment, and certainly the evidence does not warrant the conclusion that the engineer knew of the perilous position of the deceased and that it was his duty to either refuse to make the stop when signaled to do so by the conductor or else give some notice or warning, not shown in evidence, to the deceased before applying the emergency brakes. It is regrettable that the deceased lost his life in the unfortunate manner reflected by this record. The case of a faithful employee who loses his life in the service of the master through the dangers of his employment always excites sympathy. But the courts must follow the law and relieve the master from the payment of compensation where the evidence shows the injury was not the result of his negligence, but was due to the assumed hazards of the occupation. In such cases the charitable inclinations of the employer must be depended upon for amelioration. The judgment of the lower court is affirmed. Affirmed.