Louisville & Nashville R. R. v. Byrd

GARDNER, J.—

(1) This cause was submitted to the jury upon three counts, numbered 1, 2, and A, and the plea of the-general issue and that of contributory negligence. Counts 1 and '2 rested for recovery upon subdivision 5 of our Employers’ Liability Act (Code 1907, § 3910). Count A seeks recovery for a violation of the common-law duty of defendant to furnish plain-fiff a reasonably safe place in which to do the work of his employment. It is insisted that the affirmative charge was due defendant as to counts 1 and 2, for the reason that there is no negligence shown, and that, if it be conceded that there is proof ■of simple negligence sufficient for submission to the jury, the •evidence shows that the approximate cause of the injury was the negligence of plaintiff himself in failing to keep a sufficient watch for the engine which struck him.

The evidence for plaintiff tended to show that this engine was being backed from the coal chute without any warning of its approach, and that the rules required that a backing engine .give signal of three blasts of the whistle, as well as the ringing ■of the bell. There was evidence that the engine was being backed at a speed of ten miles an hour — a dangerous speed under the circumstances here disclosed. The affirmative charge as to ■these two counts on the ground of simple negligence was there *274 fore properly refused. —L. & N. R. R. Co. v. Jenkins, 196 Ala. 136 , 72 South. 68 ; A. G. S. R. R. Co. v. Skotzy, 196 Ala. 25 , 71 South. 335 ; B. R., L. & P. Co. v. Morris, 163 Ala. 190 , 50 South. 198 .

(2) Nor are we of the opinion that the affirmative charge was due defendant on its plea of contributory negligence. Plaintiff’s evidence tended to show that he stepped off the pilot of his engine, down between the two paralleled tracks, where the space was barely three feet in width when each track was' occupied by a train, and that he stood as near his engine as possible, looking to the rear of his train for a signal from the conductor, and that as he stepped off the pilot he first looked up the track, but did not see the backing engine until just as it struck him; that he was hit just as he was turning to line up, as told to do by the engineer of his train, and that all this occurred in “only a couple of minutes or so.”

Under the tendency of the evidence, as thus disclosed, we are of the opinion that it cannot be said that the plaintiff was guilty of contributory negligence as a matter of law; but we conclude that this issue was properly submitted for the jury’s determina tion. —A. G. S. R. R. Co. v. Skotzy, supra; L. & N. R. R. Co. v. Smith, 129 Ala. 553 , 30 South. 571 ; L. & N. R. R Co v Hurt, 101 Ala 34, 13 South. 130 . We have carefully examined the case of Aerkfetz v. Humphreys, 145 U. S. 418 , 12 Sup. Ct. 835, 36 L. Ed. 758 , relied on by counsel for appellant in this connection. The facts of that case are different from those presented in plaintiff’s evidence, and a review of that opinion does not persuade us that it at all militates against the conclusion here reached.

(3) There was evidence tending to show that in the yards at Flomaton — which is a junction point — there was a great deal of switching constantly going on, and that there were numerous tracks lying but a short distance apart; that the night was dark and the yards unlighted except for the switch lamps; that Floma-ton yards are the largest between Mobile and Montgomery; and that the defendant’s yards in these cities and in Pensacola are all electrically lighted.

We are of the opinion, under the evidence as noted here and, in the statement of facts, that count A was properly submitted to the' jury.—L. & N. R. R. Co. v. Andrews, 171 Ala. 200 , 54 South. 553 ; Frederick v. Coosa Pipe & Fdy. Co., 6 Ala. App. 310 , 59 South. 702 .

*275 (4) Careful consideration has been given to the question presented by the motion for a new trial. We deem a discussion of the testimony unnecessary. We are not persuaded that a reversal would be rested on the action of the court in denying the motion. The trial court had the witness before him and the advantage of observing their demeanor on the stand. In cases of this character, where the witnesses give their testimony orally before the court, the rule announced in Cobb v. Malone, 92 Ala. 630 , 9 South. 738 , still obtains.- — Acts 1915, p. 722; Hackett v. Cash, 196 Ala. 403 , 72 South. 52 ; Finney v. Studebaker, 196 Ala. 422 , 72 South. 54 .

(5) Nor are we persuaded that it is our duty, under the rule announced in Cen. Ga. Ry. v. White, 175 Ala. 60 , 56 South. 574 , to disturb the judgment as one founded upon an excessive error of damages awarded.

No reversible error appearing in the record, the judgment of the court below will be affirmed.

Affirmed.

Anderson, C. J., and McClellan and Sayre, JJ., concur.