
    Richmond & Danville Railroad Co. v. Free.
    
      Action by Employe to Recover for Personal Injuries Caused by Negligence of Master.
    1. Contributory negligence in failing to use coupling-stick as required by rules of employer'. — If a brakeman in violation of a rule of his employer with which he is familiar, prohibiting coupling except with a stick, or going between cars for that purpose when an engine was attached to them, is injured whilst between cars attempting to couple them without a stick, he is guilty of such contributory negligence as will bar a recovery by him of damages for such injury.
    Appeal from City Court of Birmingham.
    Tried before Hon. H. A. Sharpe.
    Action by Tobe Free against tbe Richmond & Danville Railroad Company, for personal injuries alleged to bave been caused by its negligence. Tbe complaint contained two counts, the first alleging tbat tbe injury was caused by defective draw-beads, in the cars; tbe second on wbicb trial was bad, alleging tbat tbe injury was caused by tbe negligence of tbe engineer in charge of tbe engine of defendant. The facts appear in tbe opinion.
    James Weatherly, for appellant,
    contended tbat tbe general charge should bave been given, citing Cooley on Torts, 70; B. B. v. Arnold, 90 Ala. 605; Jones v. B. B. 8 So. Rep. 61; líissong v. B. B. 91 Ala. 514; Brior v. B. B. 90 Ala. 320.
    B. M. Allen, for appellee.
   HARALSON, J.

— There are two counts in tbe complaint, but tbe trial was bad under tbe second.

Tbe defendant pleaded tbe general issue, of not guilty, and a plea of contributory negligence, on tbe part of tbe plaintiff. On these, tbe plaintiff took issue.

It becomes necessary, in view of tbe charges refused and given by tbe court, to review tbe evidence introduced.

It may be stated, as beyond tbe pale of controversy, tbat there was a rule of tbe company, with wbicb tbe plaintiff was familiar, wbicb prohibited brakeman from coupling and uncoupling cars, except with a stick, and from going in be- • tween them, under any circumstances, for that purpose, when an engine was attached to the cars or train. According to the evidence of the engineer, examined in behalf of the defendant, he saw the plaintiff just before he stepped between the cars, to adjust the pin, for the coupling, butit was impossible for him to see him while between them; that a man by the name of Ed Hunter, was on top of the rear car attached to the engine, giving the signals by which the engine was being moved; that when the witness started back, at first, to make the coupling, he had eight or ten car lengths to back, before reaching the stationary cars to be coupled; that he backed with the engine and cars attached, under full control,- and failed to make the coupling with the stationary cars, as he ascertained, from the fact, that plaintiff, the coupler, came out, himself, into view, and gave witness a signal to slack or pull off, a little; that witness, accordingly, pulled away, and stopped, and plaintiff went in to fix the link, which, as witness was told, slipped around the pin, and. afterwards, he received a slow signal from the brakeman bn the top of the car, to come back, and he obeyed it, as given; that the draw-heads of the cars coming together, did not more than touch, since he had only a space of about eighteen inches to back, this, the second time; that when an engine pulls away and stops, for a coupling to be arranged, there is no danger for one to go in between the cars, to adjust a pin or link, and the rules of the company forbade a coupling, if the engine was attached to the cars, and when an engine was detached for the purpose of allowing a coupling to be arranged for, it neve'r backed without a signal to do so; and in this instance, he went back in response to a slow signal from the brakeman on the car; that the plaintiff’s duty, as, a .coupler, was to use a stick, and to keep his body and arms out from between the cars, and it 'was not necessary, if a stick was used, for him to put his body or arm between them.

The brakeman, Ed Hunter, testified, that he was standing at the time, on the top of a car, attached to the engine, to be coupled, and gave the engineer a signal to come back slowly, and he did so; that the plaintiff missed making the coupling, and said to witness, to “slack off,” and witness gave the signal, to that effect, to the engineer, who obeyed it, by pulling away and stopping, and plaintiff having fixed the link, said: “let him come back again,” and the engineer, obeying a slow signal, to that effect, given by witness, eased back very slowly; that plaintiff entered the link into the coupler, and was working at the pin, having his right hand the car lie was coupling to, and bis other, between tbe cars, and tbe slack of tbe cars rolled out, as tbe witness expressed it, and caught plaintiff’s arm; that plaintiff was standing between tbe rails, with bis back to the car attached to tbe engine, as it came back.

The conductor of tbe train stated that tbe signals were given by a man on tbe top of tbe train, that they were slow signals, and tbe car was backed at tbe ordinary slow speed; that tbe plaintiff was on one side of tbe track, and be on tbe other, and tbe engineer could not see tbe plaintiff, in tbe position be was in; that the engine came back at first, moved forward and stopped, and came back again, and that tbe plaintiff could have used bis stick and made tbe coupling, or adjusted a pin, without using bis band.

Tbe plaintiff testified be bad been a brakeman, eight or ten years, and understood tbe business; that on this occasion, be flagged tbe engineer to make tbe coupling; that be threw bis band up, on tbe stationary car, and knocked'the pin in with a stick, in tbe other band, to make tbe coupling, when tbe engine backed against tbe stationary car; that be threw out bis band, just at tbe time, to make tbe coupling, when tbe engine fell back heavy, and caught and broke bis elbow; that there was room enough between tbe cars for bis •arm; that when tbe draw-beads are not driven up, there is room between tbe cars for a man to stand, but if driven up, one’s band would be mashed; that be knew of no defects in tbe draw-beads; that be kept bis eye on tbe backing engine and cars, got tbe pin ready and knew tbe engine was approaching for tbe coupling; that tbe engineer could not see plaintiff, and tbe signals were given by the brakeman on top of train; that plaintiff stood outside tbe rails when cars came together; be bad instructions to use a coupling stick, and be bad one; that be stepped on tbe track when brakeman slowed tbe engineer at first, but stood outside, when cars came together, and when tbe link slipped round tbe pin, be put one band on car in front, as be before stated, and reached over with tbe other to knock tbe pin in, with bis stick, when tbe engine jammed back against tbe car, and caught bis arm; tbe cars were half a yard apart, when plaintiff reached, to guide tbe link, and the engine came back slowly, when be was guiding tbe link; and it was after tbe draw-beads came together, be put bis band in to guide tbe pin; and thinking there was no danger, be reached under with bis left band, bolding bis stick, bis body- being between, but below tbe corner of tbe cars, and that was tbe way it caught bis elbow; that when be attempted to make tbe coupling, tbe train was moving at ordinary speed, but it just came clean on back, driving up tbe draw-heads, tbe engineer receiving bis signals from man on top, and the last be saw of this brakeman, be was giving the slow down signal to tbe engineer; that these were all tbe engineer bad to go by, and be slowed down in response to tbe signals.

From tbis resume of the facts, it appears, tbe plaintiff was not a raw band at tbe business of coupling cars, but having been at it, eight or ten years, was familiar with it, and knew its attendant dangers; that tbe company bad a rule, familiar to tbe plaintiff, against brakeman using their bands ancl placing their bodies and arms between cars, when a coupling was to be made, and requiring them to use a stick for tbe purpose; that in tbis instance, tbe coupling could have been done as well with a stick, as with tbe arm and band, without tbe stick, and there was no necessity for tbe exposure to which plaintiff subjected himself in attempting to make tbe coupling. That there was a great risk in doing so, appears from tbe necessity of a rule on tbe subject, — adopted we must presume, to avoid tbe dangers of such a practice, — and, from the injury tbe plaintiff received, in consequence of a violation of the rule. It further appears, tbe act of tbe plaintiff in placing bis arm between the cars, was a voluntary act on bis part. No employee of tbe company ordered or advised him to do it. It was not his duty to do so, but on tbe contrary, it was his duty not to have done it. He was fully cognizant of all that was going on. He knew tbe engineer did not see him, for be says so, and it is morally certain, tbe brakeman on top of tbe car, who was giving tbe signals to tbe engineer, did not see him. He alone, so far as appears, saw the situation of affairs at tbe coupling, understood and acted for himself, believing, as be stated, that there was no danger in placing bis arm in tbe exposed place. He misjudged the peril. Reason, common prudence, tbe rules of tbe company, all suggested and warned him against tbe hazard be was assuming, but together, were ineffectual to restrain him. He bad been at tbe business long enough to have become careless, in assuming risks such as cautious persons are careful to shun, as is evident from bis conduct in tbis instance. We do not think tbe company should be made to pay for tbe negligence of tbe plaintiff which contributed so directly to bis injury. Tire general charge requested by tbe defendant, should have been given.

Reversed and remanded.  