Louisville & Nashvillle Railroad v. Bouldin , 121 Ala. 197 ( 1898 )

McOLELLAN, C. J.

— We are not at all inclined to depart from the conclusions reached on the former appeal in this case that whether the intestate, Bouldin, fell under the tender, where he was run over and killed, in an effort to climb over the couplings and bumpers from one to the other end of the foot-board, or came in contact with the oil box, after he had safely passed over the couplings, etc., and was by such contact thrown or caused to fall under the wheels; and, in this latter case, whether he was guilty of such negligence in standing on the end of the running board, with his foot so protruding beyond it as to strike against the oil box, as would bar this action to recover damages for his death resulting from his foot having come in contact with the box, were each questions of fact for the jury; and further that if the presence so near to the track of the oil box was the cause of his death, the fact that he reached the position next it on that end of the foot-board by climbing over the bumpers, etc., from the other end is immaterial in the case. We also adhere to the view we then had that the position of this oil box so dangerously near to the track as to come in contact with the foot of a switch-man casually allowed to slightly protrude beyond the end of the foot-board, if the jury found it was so near, might be counted upon as the result of the negligence of Oakley, the yardmaster, as of a person to whom superintendence had been entrusted in respect of keeping the tracks in the yard free fro mobstructions, and that there Avas evidence, which is also in the present record, on the issue of his said alleged negligence vel non. Louisville & Nashville Railroad Co. v. Bouldin, 110 Ala. 185.

It follows that, in our opinion, tbe affirmative charge upon the whole complaint and upon the count alleging Oakley’s negligence and all of that number of other charges which declare or assume that Bouldin was killed in his attempt to pass over the bumpers, or that he was guilty of contributory negligence in allowing his foot to extend over the end of the foot-board, or that Oakley was not negligent, etc., were each and all properly refused to the defendant.

Defendant’s rule No. 130 which was put in evidence by it is' as follows: “All persons entering or remaining in the service of the company are warned in accepting or retaining employment they must assume the ordinary risks attending it.. Each employé is required to look after and be responsible for his own safety as well as to exercise the utmost caution to avoid injury to his fellows, especially in the switching of cars and in all movements of trains. Stepping upon the front of approaching engines, jumping on or off trains or engines moving at a high rate of speed, getting between the rails to couple or uncouple cars while in motion, and all similar imprudences are dangerous and in violation of duty. Employés of every grade are warned to see for themselves, before handling or using them, that the cars, machinery and tools which they are expected to use or handle, and the premises upon which they are expected to work are in proper condition for the service required, and if not, to put them in proper condition, or see that they are so put before using them. The company does not wish or expect its employés to incur any risks whatever from which, by the exercise of their own judgment, and by personal care they can protect themselves, but enjoins them to take time in. all cases to do their duty in safety, whether they may at the time be acting under the orders of their superiors, or otherwise.” It is insisted for appellant that under this rule it was the duty of Bouldin to discover and remove the obstruction which, under one phase of the evidence, caused his death, and that his failure in this regard was negligence as matter of law, proximately contributing to the disaster, and therefore barring recovery. We do not concur in this view. Granting that under the rule, or apart from it, indeed, there is a general duty of watchfulness and care upon all persons working in a dangerous place or .with dangerous machinery, it is not and cannot reasonably be in all cases such an absolute requirement as that its casual pretermission will entail the consequences stated. For instance, there is such general duty upon an engineer operating on the main line of a railroad, and yet he cannot be held responsible for the condition of the track over which he is required to run his engine at a speed, it may be, of a mile a minute. There are other employés specially charged with keeping the track in proper condition, and he has the right to assume that they have performed their duty, and that the track is in proper condition. So here, Bouldin’s duties were those of a switchman. These, it was upon him to discharge with care and diligence. Others were specially charged ■with the keeping of the tracks where his work was to be done free from dangerous obstructions; and while in a general way the law as well as the rule required watchfulness and care on his part to the conservation of his 'own safety, he had to rely in large measure upon the assumption that employés charged to keep the tracks in a safe condition had not placed an obstruction in dangerous proximity thereto, or had not allowed it to remain there. Having another line of duties to perform, •being specially charged therewith, it cannot be said as matter of law that lie was negligent in not removing this obstruction, not having seen it, or in not seeing it. Neither the law nor the rule imposed upon him the imperative and absolute duty of discovering and removing this obstruction or of conducting himself with reference to its presence. The trial court properly so ruled on requests for instructions.

Nor can we concur with counsel that the risk of being killed by an obstruction of this sort left in perilous proximity to the track, so near indeed that a switchman, in the casual, incidental and natural movements and position of his person, when in place for the discharge of his duties, was liable to come in fatal collision with it, was an ordinary risk of the service and accepted by Bouldin hpon entering'and while remaining there. And this though, this yard was used in building and repairing-cars, and material therefor, as well as debris from injured cars, was often placed between these switch tracks, for it might as well he said that the switchmen assumed the risk of Oakley’s directing or allowing an obstruction sufficient to wreck the engine to be placed immediately in front of it while in rapid motion. It is not an ordinary risk or one assumed by trainmen that is involved in placing an obstruction so near to the track that they are liable to be killed by it while in the customary and careful performance of their duties, as the jury might have found Bouldin was on- this occasion. Pierce v. Clavin, 82 Fed. Rep. 550; Dorsey v. Phillips & Colley Construction Co., 42 Wis. 583.

Bouldin had the same, or better, opportunities as had the engineer, to see this obstruction. There was,- as we have said, a general duty of watchfulness upon Bouldin in respect of all such obstructions — not such as that a failure to discover could be said as matter of law to be negligence, still such as was calculated to give the engineer some assurance that he had seen this. one. -Then while the engineer knew or had reason to believe that Bouldin was on that end of the foot-board, did he have reason to believe that Bouldin was in such particular position thereon as that the oil box would strike him? The engine had just passed there with a man on that end of the board, as the engineer knew, and that man had not come in contact with the box, as the engineer also knew. There were of course any number of precise positions on that end of the board which could have .been occupied without exposing the person of the. switch-man to collision with the box. From the point of view of the engineer, there was no more, we feel safe in' saying, than a bare possibility that Bouldin’s person would strike against the obstruction, even if Bouldin was not aware of its presence; and when is added to this the probability that Bouldin was aware of it, cam it be said that the engineer was lacking in ordinary care and prudence in failing to warn Bouldin of the obstruction? Would a man of ordinary care and . prudence have felt palled upon under all the circumstances to have, warned him? And .it is the rule of ordinary care which.-obtains in this connection- — not of strict, or of the utmost care and diligence. Upon a very careful consideration of the evidence, we have reached the conclusion that it shows beyond controversy a state of facts upon which arose no duty on the part of the engineer to give Bouldin notice of the presence of this oil box, and that negligence cannot be affirmed of his faiure to do so. Many rulings of the court on charges requested, etc., are in conflict with this view, and on account of them the judgment must be reversed.

We do not think there is any merit in the exceptions reserved to the rulings of the court on the competency of testimony, and we deem it unnecessary to discuss any charges or other matters not embraced in what we have said above.

Reversed and remanded.