This suit is confessedly brought under the federal Employers' Liability Act, and in such cases contributory negligence is not a complete defense, but is only considered by way of reduction of damages.
The pleas, the substance of which are set out in the foregoing statement of the case, were pleaded in bar to the cause of action, and, if they were in fact pleas of contributory negligence, the demurrer taking the point should have been sustained.
Speaking of the difference between the defense of contributory negligence and that of assumption of risk, the Supreme Court of the United States, in Seaboard Air Line R. R. Co. v. Horton, 233 U.S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L.R.A. 1915C, 1, Ann. Cas. 1915B, 475, said:
"The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employé; and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous *Page 471 occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employés in similar circumstances would use. On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employé. The risks may be present, notwithstanding the exercise of all reasonable care on his part."
See, also, Yazoo Miss. Val. R. R. Co. v. Wright,235 U.S. 376, 35 Sup. Ct. 130, 59 L. Ed. 277; L. N. R. R. Co. v. Fleming, 194 Ala. 51, 69 So. 125; Southern Ry. Co. v. Fisher, 199 Ala. 377, 74 So. 580.
We construe these pleas as showing a want of ordinary care and prudence on the part of the plaintiff's intestate in the performance of his duties, and as charging a case of aggravated negligence; that these pleas were therefore pleas of contributory negligence, and not of assumption of risk. The court in its oral charge to the jury instructed them that these pleas were of assumption of risk. The action of the court in overruling the demurrer to said pleas must work a reversal of the cause.
Counsel for appellee in their brief do not seem to controvert the insistence of appellant upon this question, but they urge that any errors committed were without injury, for the reason that the evidence entirely failed to make out a case for the plaintiff. A material portion of the evidence appears in the statement of the case, and need not be here reviewed. It is to be noted that the stationary car (which had the "brakes set") was moved a car length by the impact of the cut of cars on which plaintiff's intestate was acting as brakeman. The evidence also tends to show that these cars were moving at an accelerated speed at the time of the collision.
Plaintiff's intestate was found under the train, and one car had passed over him, and the glass from his broken lantern was found on the bumpers between the cars. It can clearly be inferred that at the time of the collision he was at the brakes on the rear of the fifth car, and after the collision the train moved one car length, and only one car passed over him.
We are of the opinion that the jury could readily infer from the facts and circumstances surrounding his injury that the deceased fell under the train at the time of the collision between the cars, produced by the sudden impact of the string of cars with the car standing upon the track north of the platform. Bromley v. R. R. Co., 95 Ala. 397, 11 So. 341; Benton v. City of Montgomery, 200 Ala. 97, 75 So. 473.
So, also, we are of the opinion the jury could infer negligence on the part of Hollis, who was a brakeman on the front end of this string of cars, whose duties, according to his testimony, were to hold the cars under control, so that there would be no accident, and to look out for obstructions on the track, and on discovery of same to set his brakes and stop the car. It further appears from the evidence that one man can control as many as seven cars, and could have brought them to a stop. Witness Hollis stated that he "was not keeping an observation in any particular direction." Under the evidence in this record, it was for the jury to say as to whether or not there was any negligence on the part of Hollis proximately contributing to the injury. L. N. R. R. Co. v. Thornton,117 Ala. 281, 23 So. 778; A. G. S. R. R. Co. v. Skotzy, 196 Ala. 25,71 So. 335. We therefore think the court properly submitted these questions for the jury's determination. Some of the witnesses testified that the movement of the cars on the night of the injury was usual and customary, and that the switching of these cars was done in the usual and customary manner. As we have stated, it was for the jury to find whether or not negligence was involved in the movement of the cars on this occasion.
Charge 51, above set out, instructed the jury that plaintiff's intestate assumed all the ordinary risk incident to the manner in which his fellow servants discharged their duties in the switching operation, which would comprehend a risk of a negligent discharge of duty by a fellow servant. We are of the opinion this charge should not have been given.
The evidence tends to show that one McCandless, a brakeman on this train, was in charge of the movement of switching the seven cars on the house track. He lined up the switches, and gave the signals for the cars to be moved. The evidence further tends to show that when this cut of cars was moving into the house track McCandless told Gulley and the brakeman Hollis that there was a car on the house track "down about the platform." There is evidence tending to show, however, that this single car, stationary upon the track, was not at the platform, but was between the platform and the switching cars. Indeed, some of the evidence in the record tends to show that this car was as much as possibly 100 feet north of the platform. The jury, therefore, was authorized to find that McCandless, acting within the scope of his authority in warning deceased and Hollis as to the condition of the track, misled them as to the distance of the obstruction, and that negligence could be predicated thereon.
Some of the counts of the complaint averred the negligence of the defendant in very general terms. As to whether or not the statement made by McCandless to Hollis and plaintiff's intestate would constitute, under all the evidence in the case, such negligence, was, we think, a question for the jury, and that charge B invaded their province, and should have been refused. A few other questions remain as to charges, which we do not consider need specific treatment. *Page 472 What we have here said should be sufficient guide upon another trial of the cause.
For the errors indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.