The plaintiff in the court below, suing as administratrix of the estate of her deceased husband, recovered a judgment against John Barton Payne, the federal Agent, liquidating causes of action arising out of federal control of the St. Louis San Francisco Railroad, on the 30th day of November, 1920, for the death of Harry F. Crawford, who was a switchman employed and at his post of duty in the operation of said railroad on the occasion and at the time of his death.
Mr. Crawford came to his death by being precipitated or falling from the top of a freight car, a part of a moving train, while he was walking or standing thereon in the discharge of the duties of his employment. None of the train crew saw him fall or was a witness to the accident. The engineer testified that the train had stalled going up hill, and that he had received a "clear board," that is, a block signal operated from a tower, and also a signal from the switchmen Lane and Crawford that he could back the train down the hill, and that thereupon he reversed his engine, released the brakes from the engine, and applied two or three exhausts of steam as he started back, and his train was proceeding down hill when the car on which Crawford was riding went out of sight around a curve and behind houses.
The trial court gave the general affirmative charge as to the several counts of the complaint except the first, which, in substance, was that Crawford, at the time of his death, was employed as a switchman by defendant, and while engaged in the performance of his duties and on top of one of the cars of said train "he was then and *Page 700 there thrown or caused to fall therefrom, and was injured so that he died;" that his injuries and death were caused by reason of the negligence of L. E. Crump, engineer, who "had charge of or control of said locomotive," engine, car, or train upon said railway, which said negligence consisted in this: "The said L. E. Crump negligently caused plaintiff's intestate to be thrown or fall from said car as aforesaid." Defendant plead in short by consent the general issue, with leave to give in evidence any matter in defense which would be admissible if well pleaded. Unless there was evidence of negligence on the part of the engineer, proximately causing Crawford to be thrown or to fall from the car, defendant was entitled to the general affirmative charge which the court refused on defendant's request in writing.
As to when the affirmative charge should be given or refused has been the subject of frequent discussion by the courts, and it will not be necessary to repeat the same. Many authorities are collected in McMillan v. Aiken, 205 Ala. 35, 88 So. 135; Penticost v. Massey, 201 Ala. 261, 77 So. 675; Id., 202 Ala. 681,81 So. 637; Id., 206 Ala. 411, 90 So. 866; Ward v. Limblad, 196 Ala. 146, 72 So. 80. The fact that there is conflict or an apparent conflict, between the evidence given by a witness on direct and cross examination will not warrant the court in disregarding the testimony of such witness; such contradiction being merely a matter affecting credibility, and is for the jury. Jones v. Bell, 201 Ala. 336, 77 So. 998; Republic I. S. Co. v. Harris, 202 Ala. 344, 80 So. 426; Thomas Furnace Co. v. Carroll, 204 Ala. 263, 85 So. 455.
In Atlantic Coast Line v. Carroll Merc. Co., 206 Ala. 320,89 So. 509, discussing the evidence, it was said that there was no inference that the injured animals received their injuries by reason of negligence —
"on the part of the carrier. The suggestion that the animals looked like they had been 'knocked down in the car' by a heavy jerk * * * is too vague to be of value. * * * There is no evidence of such a jerk, and, if there were there is nothing to show that it was due to negligence in the operation of the train. We judicially know * * * that freight trains cannot be operated without frequent jerks and jars, and proof thereof is not alone sufficient to establish negligence. St. L., etc., R. R. Co. v. Dorman, 89 So. 70."
In the instant case the testimony of the witness Cunningham was to the effect that plaintiff's intestate was sitting on the car box of the moving train, got up and threw his coat under his arm, and —
"walked west, and the train, it seemed to be stalled and gave a jerk like that [gesturing] two or three times. Well, it was the train jerking that knocked him down between the two car boxes. * * * I saw him when the train knocked him down between the car boxes with a sudden jerk."
On cross-examination this witness stated that she had seen the train standing there for five or ten minutes before the accident; that it was "keeping up lots of fuss"; that the train was backing down towards the packing house; that when she first saw it, "just the wheels were moving"; that when she "first saw Mr. Crawford, he was getting up from sitting between the car boxes," and was moving when he fell at the end of the car box; that from where witness was standing in the house she could see the engine and Mr. Crawford when he fell. It is true the witness concluded her cross-examination with the observation that the train "was jerking as it was moving along, * * * like any other freight train jerks;" that when she got to the window, it was "moving and it gave this jerk."
Witness McBride testified:
"I was throwing out ashes and the train gave * * * an unusual noise, as if it was stopping, or starting, and I looked up and Mr. Crawford was nearly to the end of the car, and he went to step, * * * his feet slipped it seemed like, and he went between the cars"
— that a man was sitting on the last car with his back to Mr. Crawford, and it seemed like Mr. Crawford was going toward the other man at the time witness "heard the sudden noise" and saw Mr. Crawford "fall between the cars." The testimony further tended to show that defendant's engineer knew of Crawford's presence on the train, saw him when the signal for backing the train was given, was looking back toward the rear end of the train, and continued to look back and could see Mr. Crawford until he "got around about 19 or 20 cars from the accident"; that witness did not see him again; that Mr. Crawford was standing on the rear end of the train — his "proper position on that train" when last seen, and this was about the point where the car was stained with blood.
No motion for a new trial was made in the lower court; hence the question of preponderance of evidence is not presented. If there is a tendency or inference of evidence before the jury to support the right of plaintiff to recover, it is the duty of the trial court to refuse general affirmative instruction. Penticost v. Massey (the several appeals) supra; McMillan v. Aiken, supra.
Counsel rely strongly in argument upon St. L. S. F. R. R. v. Dorman, 205 Ala. 609, 89 So. 70, to support their contention that the evidence failed to prove the negligence charged in the complaint against the engineer. In that case the facts showed without dispute that the deceased employé was not at his position of duty, was at a place where the engineer could not see him, and had no *Page 701 reason to believe he was in a position of peril. In the instant case the evidence is without dispute that intestate was at his position of duty on top of a car composing the train, and that the engineer knew of his position, having seen and received a signal from Mr. Crawford a few minutes before his death.
Though the engineer testified that he continued to look back toward the rear of the train at all times before and after the accident, he further stated he could not see Crawford after the rear of the train had gone around the curve. The witness Cunningham, however, testified that from her house alongside the track she saw Crawford when he was jerked from the train and at the same time saw the engineer. A further tendency of the evidence, or inference therefrom, shows that it was raining at the time, and that the engineer, knowing the position of Crawford in the discharge of his duty under such circumstances, knew that it was of more than ordinary danger and called for increased care on the engineer's part in the backward movement of the train. In view of the train stalling as it proceeded upgrade, the jury may have inferred that a release, of the brakes would permit it to run downgrade, and that it was unnecessary under the circumstances to have applied the steam two or three times to start the train, or to cause or permit any unusual or sudden jerk in its backward movement.
In Birmingham, etc., Co. v. Wilmer, 97 Ala. 165, 11 So. 886, Mr. Justice McClellan made pertinent observation that it was not disputed that plaintiff was knocked or fell off the train in consequence of a hard jerk; that this —
"was itself some evidence for the jury that the jerk was unusually and negligently severe. It surely cannot be said to be usual or necessary to jerk a train into motion under any circumstances with such force and suddenness as to hurl employees from the top of it while they, as the jury might have found plaintiff to be, are ordinarily careful and diligent."
The evidence tending to show due care on the part of the engineer in the movement of the train goes only to show that that movement was not unusually severe at the extreme rear of the train. Yet this might well be true, and still the application of the steam two or three times at the start and on releasing the brakes might be found by the jury to have exceeded the necessity to back a train downgrade, that had stalled upgrade, and held extended by its own weight and gravity, and that it would have backed down hill without any unnecessary or unusual application of the steam. A train thus suspended which, on the application of steam two or three times by the engineer, may have, in addition to weight and gravity, communicated unusual power to the successive cars, including that on which plaintiff's intestate stood at the time of his fall or precipitation between the cars, resulting in his death — such at least is a reasonable inference that may have been drawn by the jury from a consideration of all the evidence.
We are of opinion that a jury question was presented and that the general affirmative charge requested by the defendant, in writing, was properly refused.
McCLELLAN and MILLER, JJ., concur in the foregoing.