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Northern Alabama Ry. Co. v. Key

intestate, by being run over by a locomotive operated by a servant of defendant, who failed to ring the bell or blow the whistle before moving the same, as required by defendant's rules, defendant cannot escape liability on the ground that the servant did not know of the rule, since it was its duty to inform him of it.

Known

Same Contributory Negligence - Precautions against Dangers. It was not contributory negligence for an employee to go upon the track, when he knew a locomotive was to be backed, since it was his duty to go there to place the lights, and he had a right to presume that it would not be moved until the signal required by the rules of the company had been given.

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Same-Disobedience of Rules or Orders.-Where plaintiff's testate was killed by being run over by a backing locomotive, when he went upon the track to fix the lights, he was not guilty of contributory negligence in failing to signal the hostler in charge of the locomotive to stop, where it was already standing still.

Evidence Secondary Evidence. In an action for personal injuries due to the negligence of a railway company's employee, where the fact that the company had certain rules for the conduct of employces, which were not brought out in the pleading, but developed incidentally in the examination of a witness, when there was no opportunity for demanding a printed copy, which was in the hands of the defendant, the plaintiff may show the contents of the rules by the testimony of the witness.

Death-Damages-Instructions.

In an action for the death of plain

tiff's intestate, it was not error for the court, in instructing the jury as to the measure of damages, to state that the mortality tables placed the life expectancy of plaintiff's intestate at so many years, where he further informed them that this was not conclusive.

Master and Servant-Injuries to Servant-Negligence of Master. -Where a servant of a railway, having charge of a locomotive, backed it over plaintiff's intestate, causing his death, his negligence did not depend alone on whether he knew that the intestate was in a perilous position; but he was chargeable with negligence if he knew that the intestate's duties required him to place the lights, when it was determined to back the engine, and that he was, therefore, liable to be in a place of danger.

Appeal from Circuit Court, Colbert County; Ed. B. Almon, Judge.

Action by John W. Key, administrator, against the Northern Alabama Railway Company. Judgment for plaintiff and defendant appeals. Affirmed.

This was an action for damages for death of an employee. The facts are sufficiently stated in the opinion. In his oral charge to the jury, the court said: "In assessing damages in a case like this, it devolves on the jury, upon consideration of all the circumstances bearing upon the subject, as disclosed by the evidence, to ascertain what the duration of the party's natural life would

Sce preceding case, and foot-notes.

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Northern Alabama Ry. Co. v. Key

have been. There is no ascertaining it as a positive fact. The period fixed in any case is necessarily an inference drawn from many conditions and circumstances. In the same case different minds of equal intelligence might reach different conclusions. The tables of mortality, computed upon the experience of life insurance companies, which, being of such universal recognition, courts will judicially notice, place the life expectancy of plaintiff's intestate at 40 years, if you find from the evidence that he was 21 years old at the time of his death; but this is not conclusive." The defendant requested the following charges, which were refused: Charge 6: "Whether Hanlan, the hostler, was guilty of negligence, depends on whether, when he began to back the engine, he knew that Key was in such a position as made him liable to be struck by the engine; and if the hostler began to back without knowing where Key was, and without having rung the bell or blown the whistle, plaintiff is not entitled to reCharge 7: "If the defendant had a rule requiring the bell to be rung or the whistle to be blown before the hostler began to back the engine, the violation of such rule would not be negligence, for which an employee or employee's administrator could recover." There was verdict and judgment for the plaintiff in the sum of $2,000, and defendant appeals.

Humes & Speake, for appellant.

Kirk, Carmichael & Rather, for appellee.

SIMPSON, J. This was an action for damages for the death of plaintiff's (appellee's) intestate, who was an employee of the defendant (appellant). Said intestate was employed as a herder, and a locomotive of defendant's was in charge of one Hanlan, who was a hostler, and whose duties, according to the evidence, were to take charge of the engine when it comes in off the road, to take it to the shop, or bring it back; and it was also his duty, before backing his engine, to blow the whistle or ring the bell. The evidence shows that, at the time the accident occurred, the engine was backing, and that the hostler did not ring the bell or blow the whistle when he backed it.

Appellant urges that the general affirmative charge should have been given in favor of the defendant, and his first insistence is that the only negligence chargeable to the hostler is that he failed to ring the bell or blow the whistle when the engine was backed, and that the rule requiring this duty was not for the benefit of employees of the company, but only for the public who might be crossing the track; and in substantiation of that position the case of Central of Ga. Ry. Co. v. Martin, 138 Ala. 531, 544, 36 South. 426, is cited. That was a case where there was a collision of the train of one railway with the train of another, and the court held that the provisions of law with regard to signals and precautions at public road crossings, and on entering and passing through towns, etc., did not apply, for the very sufficient reason that another class of rules are provided for the purpose of preventing collisions, which are as liable to

Northern Alabama Ry. Co. v. Key

occur at any other place as at a public road crossing. The case of K. C., F. S. & M. Ry. Co. v. Hammond, 58 Ark. 324, 24 S. W. 723, is equally inapplicable to the facts of this case. In that case it was merely held that the railroad company was not bound to make a rule requiring engineers, on approaching a quarry, to sound the whistle. The workmen at a quarry have no more right than any one else to be upon the tracks of a railroad, and if, by reason of the operation of their quarry, obstructions were thrown on the track, it would be their duty, without any rule, to put out signals to warn the approaching train. We can see no reason why the rule in question was not as much for the protection of the employees as for any one else who should happen to be on the track. In fact, it would seem that common prudence would dictate such a precaution, where an employee's duties were such as to be likely to require him to be on the track.

It is next insisted, that if this rule was intended for the protec- tion of the employee, yet the company could not be made liable, because there was no evidence that the hostler knew of this rule; and the Case of Graham, 94 Ala. 545, 10 South. 283, and Hawkins' Case, 92 Ala. 245, 9 South. 271, are cited. In those cases it was held that an employee could not be held guilty of contributory negligence for the violation of a rule of which he had no knowledge. It will be readily seen that the cause is very different where the principal is sued for injury resulting from the failure of his employee to observe the reasonable precautions which he has laid down for guidance of his employees, in order to protect others from injury. The duty rests upon the principal to adopt reasonable rules in the conduct of its business for the protection of its employees who are placed in danger, and to instruct its employees in regard to said rules; and while it is true that such rules do not stand like statutory requirements, so that the violation of them would be necessarily negligent, yet where they are reasonable, as in this case, and such as it would be the duty of the principal to adopt and enforce, the presumption, as against the principal, is that its employee has been informed of the rule, and the principal cannot shield itself from responsibility, by alleging its failure to instruct its own employee. 1 Labatt's Master & Servant, p. 31 § 16a; Id. p. 443, § 207; Id. § 109, and notes, p. 489, § 218; Id. p. 493, § 219, and notes, p. 494; Luebke v. Chicago, M., etc., Ry., 17 N. W. 870, 59 Wis. 127, 48 Am. Rep. 483; Promer v. Milwaukee, etc., Ry., 63 N. W. 90, 90 Wis. 215, 48 Am. St. Rep. 905; Smithson v. Chicago G. W. Ry., 73 N. W. 853, 71 Minn. 216; Daley v. Brown (N. Y.) 60 N. E. 752. While it may be that the evidence does not show that the hostler knew the intestate was in the place of danger, yet it does not show that it was the duty of said intestate to place the lights, and he therefore had knowledge of the fact that intestate's duties called him to that place.

It is next insisted that the deceased was guilty of contributory negligence: (1) Because he knew that the engine was to be moved backward. That may be true, but that very knowledge suggested to him his duty to place the lights before it was moved

Northern Alabama Ry. Co. v. Key

backward, and he had a right to presume that it would not be moved back until after the signal had been given. (2) Because of the evidence with regard to the duty imposed upon the deceased to give a signal and have the engine stop before he attempted to go behind it and place the lights. The evidence upon this subject is that "it is the duty of the herder, if he wishes to fix the lights on the engine backing towards him, or if he wishes to get on the track, to signal the hostler to stop the engine before he goes in," and "it is his duty, if he wishes to fix the lights, after the engine begins to move, or if he has to get on the track for any purpose ahead of the engine, to signal the engineer to stop before doing so." It will be noticed that this duty to signal was only for the purpose of stopping the engine after it had started; for there would be no sense in giving a signal to stop the engine when it was stationary. There is not any evidence to show that the deceased went in to place the lights after the engine started. On the contrary, one of the witnesses testified that he was in the act of performing that duty when the engine was backed. The evidence does not show that he was guilty of contributory negligence.

It is next insisted that the court erred in permitting the witness to testify as to the contents of the rules prescribing the duties of the hostler as it was shown that such rules were written or printed. While our court has laid down the principle that, when the defendant seeks to prove by parol the contents of its own rules, which were printed, it could not be done (Ga. Pac. Ry. v. Propst, 90 Ala. 1, 7 South. 635; L. & N. R. R. Co. v. Orr, 94 Ala. 602, 10 South. 167), yet where the fact of there being such a rule is not brought out in the pleading, and the matter is developed incidentally in the examination of a witness, when there is no time nor opportunity for demanding the printed copy, which is in the hands of the defendant, we think it would be unjust to deprive the plaintiff of the benefit of the testimony as to what are the duties of the hostler. It is within the power of the defendant to produce the book and show what the rules are. The company cannot prevent the plaintiff from proving what the duties of its servants are (which is a matter known to all of its employees) by showing that the duties are stated in a printed rule.

There is some confusion in the next contention of appellant's brief, as it refers to assignments 8 and 9, and his argument relates to assignments 6 and 7. There is no error in the matter referred to in said assignments relating to the charge of the court. on the measure of damages. The court did not, as in the Jones Case, 114 Ala. 520, 533, 21 South. 507, 62 Am. St. Rep. 121, undertake to state that the expectancy of the deceased was a certain number of years, but only that the tables place the life expectancy at so many years, and the charge went on to inform the jury that "this is not conclusive."

Charge 6, requested by the defendant, was properly refused. As we have before shown, the question as to whether Hanlan

25 R R R-24

Vito v. West Chester, etc., Electric Ry. Co

was guilty of negligence did not depend alone on whether he knew that the deceased was in a perilous position; but he would be chargeable with negligence if he knew that the deceased's duties required him to place the lights, when it was determined to back the engine, and that he was, therefore, liable to be in the perilous position at that time.

Charge 7, requested by the defendant, was properly refused. As has been before shown, while it is true that the mere fact that there was a rule requiring the hostler to blow the whistle or ring the bell would not necessarily render the hostler's act in disregarding it negligence, yet when that rule was reasonable, and such as it was the duty of the defendant to adopt, the disregard of it would be negligence.

The judgment of the court is affirmed.

TYSON, C. J., and HARALSON and DENSON, JJ., concur.

VITO V. WEST CHESTER, KENNETT & WILMINGTON ELECTRIC Ry. Co.

(Supreme Court of Pennsylvania, April 1, 1907.)

[66 Atl. Rep. 659.]

Master and Servant-Injury to Servant-Negligence of Fellow Servant.*—Where a workman excavating the roadbed of a railway was injured by the explosion of dynamite caused by the negligence of a co-employee who was helping plaintiff in lighting the fuses, he cannot recover from the railway company employing him.

Appeal from Court of Common Pleas, Chester County.

Action by Felice Vito against the West Chester, Kennett & Wilmington Electric Railway Company. Judgment of nonsuit, and plaintiff appeals. Affirmed.

At the trial it appeared that at the time of the accident the plaintiff was engaged in excavating the roadbed of defendants' railway. While so engaged, he was injured by an explosion of dynamite. The testimony showed that the accident was caused by the negligent act of one Big Mike in prematurely lighting a short fuse. The court entered a nonsuit, saying: "I cannot see that there is any liability here on the part of the defendant for this accident in any way. If anybody was responsible for it other than the plaintiff himself, it was Big Mike, who was not a vice principal, nor a principal. At most, he was foreman, or 'boss," as he was called, but in this accident he was a co

*For the authorities in this series on the question whether a foreman is the fellow servant of a hand working under his orders, see footnotes appended to Chicago & E. R. Co. v. Kimmel (Ill.), 21 R. R. R. 384, 44 Am. & Eng. R. Cas., N. S., 384; foot-notes appended to Jemming v. Great Northern Ry. Co. (Minn.), 19 R. R. R. 697, 42 Am. & Eng. R. Cas., N. S., 697.

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