PRATT V. SOUTHERN RY. Co.

(Supreme Court of Alabama, Jan. 20, 1910.)

[51 So. Rep. 604.]

Master and Servant-Contributory Negligence of Servant-Evidence.*-Where plaintiff, a switchman, stood between the rails of a track over which a switch engine approached him at the rate of from two to four miles an hour, and when the engine came within stepping distance undertook to mount the footboard, fell, and was injured, he was guilty of negligence, barring his recovery, although the footboard and the handhold on the engine were defective, and it was his right as switchman to ride on the footboard.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by R. L. Pratt against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Jere C. King, for appellant.

Weatherly & Stokely, for appellee.

MCCLELLAN, J. The court below gave the affirmative charge for the defendant (appellee) evidently upon the theory that the plaintiff was guilty of negligence that contributed proximately to his injury. We concur in the conclusion entertained and applied below. The plaintiff was a switch engine foreman. The engine had been at rest for some time in consequence of a "block" caused by another train. The engine, of the switch engine type, was started in the direction of plaintiff, he standing between the rails of the track over which the engine was approaching him, at the rate of from two to four miles an hour. Though knowing of the approach of the engine, he remained where he was, and when the engine reached a point within stepping distance he undertook to and did place his foot on the footboard, which, there was evidence tending to show, was bent or so out of condition as to render it difficult to stand upon it or hold a footing on it, and reached for the handhold. The evidence was in dispute as to whether there was a handhold or not. The plaintiff testified there was

*For the authorities in this series on the question whether it is contributory negligence for a railroad employee to board a moving train, locomotive or car, see third foot-note of Vaillancourt v. Grand Trunk Ry. Co. (Vt.), 33 R. R. R. 353, 56 Am. & Eng. R. Cas., N. S., 353; second foot-note of Reeves v. North Carolina R. Co. (N. Car.), 33 R. R. R. 382, 56 Am. & Eng. R. Cas., N. S., 382.

For the authorities in this series on the subject of the combined effect of negligence and contributory negligence, in actions for injuries to employees, see foot-note of Kentucky, etc., Co. v. Snydor (Ky.), 17 R. R. R. 520, 40 Am. & Eng. R. Cas., N. S., 520.

Pratt v. Southern Ry. Co

none, and his effort to grab it, and thereby maintain his place on the footboard, failed. He immediately fell in front of the engine and was injured. There is evidence to the effect that servants, such as this plaintiff was, had the right to ride on the footboards on switch engines. However, this testimony had no tendency to show that proper prudence was employed in attempting to board the engine as plaintiff did.

The chief point of contention for appellant seems to be that, since a properly constructed or equipped switch engine should have unbent footboards at the forward and rear ends, and also a handhold or handholds, the proximate cause of this injury should be ascribed to the bent footboard, or to the absence of a proper handhold, or to both, and, in the operation, relegating the negligent act of the plaintiff in attempting, as and when he did, to board the engine to the creating of a condition, merely, upon which the imperfections of the mechanism referred to operated to afford the proximate cause of the injury. The defect or defects complained of existed before plaintiff negligently placed himself in a position where from his injury resulted. It was his negligent act that gave opportunity for injury to flow from the defect or defects. Without his negligent act the imperfections were inactive, harmless to plaintiff. His right to ride on the footboard did not, as stated, comprehend any right to leave the course of at least ordinary prudence to enjoy the right to ride. Viewed with utmost favor to the plaintiff, the defects described in his pleading concurred with his imprudent, negligent act in the great injury that befell him.

The judgment is affirmed.

Affirmed.

DOWDELL, C. J., and SIMPSON and MAYFIELD, JJ., concur.

RUSSELL'S ADM'R v. LOUISVILLE & N. R. Co.

(Court of Appeals of Kentucky, Feb. 1, 1910.)

[124 S. W. Rep. 841.]

Master and Servant-Death of Servant-Railroads Contributory Negligence.*-A railroad rule requiring car repairers to place a blue flag on each end of a cut of cars on which repairs were being made required both inspectors and carpenters working on cars to protect their own safety, so that, where a car carpenter was killed by failure to put out flags, it was not material that the car inspector who was his superior was working with him at the time, and was chargeable with the same negligence.

Evidence-Admissibility-Conclusions. In an action for the death of a car inspector while aiding in the repair of certain cars, evidence, that it was negligent operation for the trainmen to run the engine into the yards without ringing the bell or giving other adequate warning of the engine's approach, was inadmissible as calling for the opinion of the witness.

Appeal from Circuit Court, Logan County. "Not to be officially reported."

Action by C. L. Russell's Administrator against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

R. W. Davis, B. F. Proctor, and Greene, Van Winkle & Schoolfield, for appellant.

Browder & Browder, Benjamin D. Warfield, and Chas. H. Moorman, for appellee.

O'REAR, J. C. L. Russell was a car carpenter in the service of appellee at its yards at Russellville, Ky., and had been so employed for 15 or 16 years, when he lost his life. His duties were to inspect cars in that yard, and more particularly to repair such as the inspection showed needed repairing, when it could be done without sending them to the shops. In addition to Russell there was another, Thornton, who was denominated an inspector. His duty seems to have been to inspect all freight cars in the yard to detect the necessity for repair, and if found defective to tag them accordingly and notify the agent of the fact. He also helped at repairing the cars when it could be done without taking them to the machine shops. Over these two men in authority was the master mechanic, Ryan. The testimony is that in his absence Russell

*For the authorities in this series on the subject of contributory negligence of an employee in violating rules or orders, see first footnote of Louisville & N. R. Co. v. Fitzgerald (Ala.), 33 R. R. R. 577, 56 Am. & Eng. R. Cas., N. S., 577.

Russell's Adm'r v. Louisville & N. R. Co

acted in his place. On August 14, 1905, Thornton discovered a coal car on the house track in the Russellville yard that was out of repair. He tagged it and reported it. He then sent word to Russell to come up and examine it to see whether it could be there repaired. Russell came. He advised repairing it there. Thereupon Thornton went under the car to do the work. Russell said he would watch out for him. After a few minutes Thornton reported the work done, as well as could be done there, and that he thought it would do until the car got to the shops. Russell was then standing at the end of the car between the rails, and, as he stooped and looked under the car, evidently to confirm Thornton's opinion as to the efficiency of the repair, the cut of cars, of which that one formed a part, was struck and moved forward by an incoming local freight train, Russell was knocked down by the impact, and killed. The cut of cars contained six or eight freight cars. A rule of the railroad company required car inspectors to place a blue flag on each end of a cut of cars on which they were working as notice to trainmen not to touch them while the flags were there. The rule was known to Thornton and Russell. But they did not observe it on this occasion. The train which struck their car was a regular local freight, which came in on or about the time it was due. In coming into the yard it went up to the house track, which was next to the freight station, to place cars and discharge freight. There was evidence that it was moving slowly-not over four miles an hour-yet its bell was not ringing. On the other hand the evidence for the company was that the bell was ringing. This suit by Russell's administrator to recover damages from the railroad company for the destruction of the intestate's power to earn money developed the foregoing facts.

The court instructed the jury that if those in charge of the engine of the local freight train negligently failed to ring its bell so as to give timely warning to laborers in the yards of the movements of the train, and that by reason of such failure Russell lost his life, the law was for the plaintiff. But that if Russell by his own negligence so contributed to his injury, notwithstanding the negligence of those in charge of the engine, that his injury would not have occurred, the law was for the defendant. The verdict was for the defendant railroad company.

Appellant's principal.complaint on this appeal is that the court should have instructed also that Thornton was superior in authority to Russell, and that if Thornton negligently ordered Russell to do the work in a place of peril, without having taken the necessary precaution to flag the car, the law was for the plaintiff. The rules of the company which were known to Russell as well as to Thornton, and which were promulgated for the guidance of each, required car inspectors to place blue flags on each end of the car or cut of cars on which they were engaged at work. There was

Lindsay v. Pennsylvania R. Co

not evidence that Thornton ordered Russell to do any work on
the car. As a matter of fact he did none. It was Russell's duty
to protect himself by keeping in a place of safety, or if he went on
or under the car to put out the flags for his protection. Whether
Thornton was negligent in not placing the flags is wholly beside
the case, as his negligence did not excuse Russell from that duty.
Appellant complains, too, that the circuit court erred in rejecting
certain testimony offered on his behalf, to the effect that it was
negligent operation for the trainmen to run the engine in the yards
without ringing the bell or giving other adequate warning of the
engine's approach. But the court did better for appellant than if
the testimony had been allowed. For he told the jury that as a
matter of law it was actionable negligence to so operate the train.
Nor was the opinion of the witnesses competent evidence.
Whether the operation of the train was prudent or negligent was,
either a matter of law, or it was one of law and fact to be deter-
mined upon the whole case-not by the opinions of witnesses.
We perceive no error in the record.
Judgment affirmed.

LINDSAY V. PENNSYLVANIA R. Co. et al.

(Court of Errors and Appeals of New Jersey, Feb. 28, 1910.)

[75 Atl. Rep. 912.]

Railroads Crossing Accidents-Duty to Look.*-The plaintiff's intestate, in attempting to cross a railway at a street crossing, was killed while on the first of four lines of tracks. When on the sidewalk about 15 feet from the crossing he stopped, and looked in the direction from which trains using the first line of tracks usually came, and then proceeded to walk across without making any further observation, although he could have done so effectively at least four feet before going on the track. When near the second rail of the first line of tracks he turned to look towards a coming train, but was instantly struck by it. If he had looked before going on the track, he would have seen the train and avoided the accident. Held, that he was bound to look from a point where it would be effective, just before going upon the track, and that his neglect to do so contributed to the accident.

*See last foot-note of Wilkinson v. Oregon Short Line R. Co. (Utah), 34 R. R. R. 360, 57 Am. & Eng. R. Cas., N. S., 360; see third head-note of Barthelmas v. Lake Shore, etc., Ry. Co. (Pa.), 34 R. R. R. 378, 57 Am. & Eng. R. Cas., N. S., 378; second foot-note of Blodgett 7. Central Vermont Ry. Co. (Vt.), 33 R. R. R. 511. 56 Am. & Eng. R. Cas., N. S.. 511; foot-note of Bistider v. Lehigh Valley R. Co. (Pa.), 33 R. R. R. 492, 56 Am. & Eng. R. Cas., N. S., 492.