I fully concur in the view that no causal connection is shown between the injury, and running without the air brakes coupled up. Deceased was killed as the train started to move, or in any event passed far beyond the place where he was crushed by the moving train before his presence was discovered by the enginemen. No condition of the air brakes as a means of stopping the train could have caused the injury.
But if a rule prescribed by law required the air coupled up before starting, and deceased put himself in a place of danger on the faith that the train would not move until this was done, such rule was proper evidence negativing contributory negligence of deceased in mitigation of damages, and also as to the initial negligence of the trainmen in starting the train prematurely without a proper lookout to see that no one was in a place of danger; a danger incurred because the train was not ready to move.
Premature starting of the train in a negligent manner (premature because the air had not been coupled up, and negligent for failure to anticipate and look out for the safety of yardmen in so starting) might, in my opinion, be the proximate cause of the injury. New York Central Railroad Company v. Marcone, 281 U.S. 345, 50 S.Ct. 294, 74 L.Ed. 892.
This would depend on whether the rule was applicable in such yard movements, and deceased may have reasonably relied upon its observance.
The evidence, without dispute, discloses that, to the knowledge of deceased and the trainmen, it was not the custom to couple up the air in switching movements of this kind. He could not therefore have put himself in a place of danger in reliance upon the cars not being moved until the air was coupled up; neither was there initial negligence in failing to anticipate such danger and safeguard against it.
The real contention of appellee is that it was unlawful to move these cars at all without coupling the air, and that such unlawful movement was the proximate cause of the injury. Charge Y, in effect, so instructed the jury.
If the movement was not premature as above discussed, the mere fact that it was unlawful, and could not be made at all, without the air being coupled up, was not the proximate cause of the injury. This was definitely declared in both the former appeals. 221 Ala. page 411 [26], 129 So. 60; 219 Ala. page 245 [8], 121 So. 722.
I therefore concur in the present holding that, under this record, the question of negligence for failure to couple up the air, conceding the legal duty so to do, should have been definitely put out of the case.
On Rehearing.