The first two counts, numbered one and three, charge negligence in the engineer, and the fourth, the negligence of the conductor of the train, as the cause of the injury to the plaintiff. No willfulness or wantonness is averred. The pleas were the general issue, and contributory negligence on the part of the plaintiff.
The evidence on which the case is to be determined is not in conflict. The train moved westward from Stephenson to Scottsboro in Alabama. At the latter point, there is a switch track making off from the main line on the north, and running parallel therewith, west, some distance, connecting again with the main track. On this switch track, there were standing from three to five uncoupled empty cars. There was a loaded car in the train to be attached to the engine and thrown in on the switch track, with the other stationary cars already there, the purpose being, to unload it into wagons on a dirt road which ran parallel and close to it, on the north. On the arrival of the train, the first brakeman and plaintiff, by the orders of the conductor, proceeded to place said loaded car on the side track. The engineer and fireman were on the engine, and the conductor, who had supeiintendence,
When the engine was backing the loaded car, and when about five car lengths from plaintiff, he testified, that the engine was backing down so rapidly, he gave the signal to slow up, and then stepped at once, as quick as he gave the signal, between the second and third loose
The plaintiff was twenty-three years old and had been braking on freight trains on said road about three years, and was familiar with the rules of the company. The evidence was conflicting whether plaintiff used a stick for coupling on the occasion or not.
The rules of the company were introduced, among which was the following: "Use care. 139 — Every employe must exercise the utmost caution to avoid injury to himself or to his fellows, especially in the switching of cars and in all movements of trains, which work each employe must look after, and be responsible for his own safety. Jumping on or off trains or engines in motion, getting between' cars in motion to couple or uncouple them, and all similar imprudences are dangerous and in violation of duty. All employes are warned that if they commit these imprudences it will be at their own peril and risk.”
From the foregoing evidence it appears that the plaintiff attempted ah obviously perilous undertaking, by going in between cars to couple them, whether he used a stick or not; that there was no necessity for his having exposed himself, no order having been given, even, to couple these loose cars, and if there had been, there was a safer way of doing it, by waiting a moment until the cars came together; that there was no emergency justifying the self-imposed exposure, the very great danger of which was illustrated in the injury he received ; that he undertook this unnecessary and perilous feat, without waiting to see if the signal he gave to slow up, if of any service to him, had been seen or obeyed ; and all this, in direct violation of the rules of the company, with which he was familiar, and which he had agreed in writing, when he accepted service, strictly to obey. The plea that the engine moved too rapidly back, does not avail him. Having committed the im
There was no error in giving the general charge for the defendants as requested.
Affirmed.