Action for damages against the railroad company for personal injuries.
We hold, upon due consideration, that none of the counts of the complaint are subject to the demurrers assigned to them, though some of us were inclined to think too much indefiniteness and uncertainty, in stating the relation Avhich the plaintiff bore to the defendant’s service at the time he was injured, and hOAV the injury was inflicted, characterized some of the counts. Pleadings ought to be clear and explicit in their averments. We, hoAvever, qualify the above statement so far as it applies to one objection raised to the second count. The point of this objection is that the count does not show that the engine was “upon a railway or of some part of the track of a raihvay” within the terms of subdivision five of the Employers’ Liability Act. As the judgment must be reversed for other causes, and as, in point of undisputed fact, in the cause, the engine in question Avas upon the railway of the defendant, we will not pass uoav upon the practically abstract question, suggesting merely that it Avould be well for the plaintiff' to relieve the case of it by making the allegation insisted upon as necessary.
There Avas no plea of contributory negligence specifying what particular negligence of the plaintiff was relied upon, but there was a general plea that the injuries complained of Avere the proximate result of plaintiff’s contributory negligence, on Avhich issue was joined. This authorized the defendant to make any defense of contributory negligence Avhich its evidence might establish, and evidence of any negligence, legally contributory, was admissible under it.
Taking the plaintiff’s undisputed testimony as evidence of the facts, at the time of his injury he was engaged, under employment of the defendant, as a car-coupler and brakeman on a train in defendant’s sendee. When injured, the train Avas being run on a sidetrack AAdiich belonged to a furnace company, but which was used by the defendant, for SAvitching cars for the furnace company. The track was in bad condition; the rails being old and Avorn and the stub switch mismatched. On the day of the injury, plaintiff’s train went in on this sidetrack and was thrown from the track by said mismatched stub switch. Within an hour on *583hour and a half, the train went back, and was again thrown from the track by said switch, and plaintiff was thereby injured. In a matched stub switch, the insides of the rails are straight and even with each other; in a mismatched stub switch they are not even, and while running on a rail, instead of the flange taking the inside ¡of the other rail, it will strike the end of the rail and mount it. That was what caused the wreck in the present case. The plaintiff testified that he had seen the mismatched switch there before; and it had been there ever since he had been Avorking for the company, Avhich had been two years before the injury occurred; that the defendant kept this sidetrack in repair; that defendant did all its SAAritching there for the furnace company; that he had been at Avoids there, off and on, for two years, and defendant had been doing the switching there during that time. Plaintiff had told defendant’s section foreman, before the injury, that the SAvitch was out of repair. A witness for plaintiff testified that the cars had been frequently off the track there; that they were pretty nearly all the time getting off the track up there; that the track Avas in a bad fix.
Under this eAÚdence, about which there is no dispute, it is manifest that the case comes within the principle declared in Birmingham Ry. Co. v. Allen, 99 Ala. 359, (reaffirming Eureka Co. v. Bass, 81 Ala. 201); L. & N. R. R. Co. v. Stutts, 105 Ala. 368; L. & N. R. R. Co. v. Banks, 101 Ala. 508, to the effect that plaintiff voluntarily took upon himself the hazard of the dangerous track and switch, by so long continuing, knowingly, to expose himself to the danger, unless there is something else in the case AAduch takes it without the principle; and for this purpose, the plaintiff relies upon the folloAVing facts: One Wooclliff Avas section foreman, and Avith his force, did the track repair Avork on a part of defendant’s road, including the track where the injury occurred. Plaintiff testified that when they went in at the switch that day, (which, we have seen, was an hour or an hour and a half before they came out and the injury occurred), they saw Wooclliff at work close to the point, doing some job, 300 or 400 yards from the point where they got the car off. Wooclliff came up there while they had. the car off, and plaintiff told him that the switch was out of order, Avas not matched and that they had *584gotten a car off there, and asked him to come and repair the switch. Woodliff brought his men there to work, and afterwards, and before the train came out and the wreck happened, in which plaintiff was injured, went to the train crew, including plaintiff, and told them that the track was fixed, was all right and safe and that they could go on. The conductor of the train testified that they had a car off at the switch, and he sent Davis to tell Woodliff to repair the switch; and afterwards, and before the wreck and injury occurred, Woodliff came to where they were and told them it was fixed. Plaintiff insists he relied, and had a right to rely, upon this statement of Woodliff, and continue, thereafter, in the service as he did without the imputation of negligence on his part. The defendant insists that Woodliff did net occupy such a relation to it, as that it could be legally affected by his declarations, of the character relied upon. Its counsel insists that it was merely his, Woodliff’s, duty to do the work of repairing the track; that he was not “in the service of the master or employer, and intrusted by him with the duty of seeing, that the ways, works, machinery or plant were in proper condition,” within the meaning of that provision of the employers’ liability act, and was not a “person in the charge or control of any part of the track of a raihvay” within the meaning of subdivision five of that act; hence, that Woodliff was only a fellow-servant — a co-laborer with plaintiff, not charged with the supervisory duty of seeing that the track was in proper condition, but only wdth the duty of doing the work of repairs, in pursuance of the judgment and discretion of a supervisor. The evidence as to what Woodliff reported to the crew was objected to, and exceptions reserved to its admission.
The evidence of the duties of Woodliff was as follows: B. L. Stewart, yard master of defendant and conductor of said train, testified that the section foreman got his orders from the supervisor; that section for emeu’s general duty is to keep the track in repair; the supervisor merely sees that it is so kept. The plaintiff testified “that defendant had Woodliff seeing after the branch from G-adsden to Attalla and keeping the track in proper repair, and he did the work on this track, where I was hurt.” Further on he said: “It is the duty of the section foreman to keep the track in proper repair.” it is com*585mon knowledge that a railroad section foreman is a person who has charge and superintendence of the force of roadway laborers, and charged with the duty of keeping the track in proper condition, over that section of the road assigned to him. If he should learn of a defect in any part of the track, on his section, we suppose it would not be disputed that it would be his duty to have it repaired and see that it was properly done, without any order from any one. It would be a very narrow construction of the statute to hold that he was not a person intrusted by the defendant with the duty of seeing than the track was in proper condition. — Birmingham Ry. & E. Co. v. Baylor, 101 Ala. 488.
We hold, therefore, that it was competent for the plaintiff to make the proof in reference to repair of the track by Woodliff, and his, Woodliff’s report to the crew that the track had been fixed and was safe for the train 'to go out on. It was admissible to be considered by the jury in determining whether the plaintiff voluntarily accepted the danger, which would, as we have said, have been the case without some intervening fact which justified him in continuing in the service. If the section foreman reported to plaintiff that the track had been fixed so as to be safe, and there was nothing to cause ¿he plaintiff to disbelieve the statement, the plaintiff had the right, in good faith, to rely upon the information so received and continue in the service, so far as danger from t'he defects to which the information related were concerned; and if, under such circumstances, he did rely upon it, and continue in the service when he would not otherwise have done so, his continuance in the service was not an assumption of the risk.
The statement of the witness, Stewart, that on two or three different occasions not long before the accident, perhaps a day or two before, he told the engineer, Jackson, to run slow while switching backward and forward on the furnace track, was objected to by the defendant on the grounds that the same was irrelevant and immaterial. Some of the counts of the complaint charged that the injury resulted from the negligence of the engineer in running the train too fast. In view of this issue it was competent for the plaintiff to show that the engineer had received notice, shortly before the injury, of the bad condition of the track, and that the evidence *586objected to had a tendency to shoAV such notice. The evidence, therefore, Avas neither immaterial nor irrelevant.
The first charge requested by the plaintiff Avas abstract in so far as it allowed recovery for expenses suffered by plaintiff in and about his cure. There Avas no proof at all of the expense he suffered; the jury had no data to be governed by, and the charge submitted to them a matter they could not determine. The charge Avas misleading, in a way that might have induced the jury to the prejudice of the defendant to alloAV the plaintiff for the medical services rendered by Dr. Stewart, under the employment of the defendant, and for which it had paid- The court erred in giving the charge.
Under the facts of this case it Avas immaterial whether plaintiff had given the defendant notice of the condition of the track or not. If, as we have said, he was not justified in continuing or did not continue in the service, by reason of what occurred with Woodliff, in reference to the repair of the track, on the day of the injury, the undisputed facts of the case are such, that he Avas not entitled to recover on account of the condition of the track, AAiiether he had given defendant notice of the condition or not. So that, charges 2 and 4 given for plaintiff Avere upon immaterial questions, and might have been refused.
Charge number 3 Avas abstract and erroneous and ought to have been refused. There Avas no evidence that the defendant, through Woodliff or any one else, agreed to remedy the defect in the track, and if there had been, the charge ignores the inquiry as to Avhether the plaintiff kneAV that the agreement had not been carried out. We have already stated what occurred between Woodliff .and the crew.
It was insisted by the defendant that the plaintiff was guilty of contributory negligence in taking the position he did on the train, on the occasion of the injury. The evidence on that subject was as folloAvs: The plaintiff testified, that at the time of the injury he Avas standing on the end sill between two cars, the first and second cars from the front; that one had to stand on the end sill to set the brakes up, and that he set the brakes up as soon as he turned over the hill, in about 200 or 300 yards of the place of the injury; that his place that day *587was following the engine, hut, that morning, he was not feeling well, and he asked Stewart, the yard-master, to let him change with Boggus, and let Boggus follow the engine that day; that at the time of the injury, he was standing with one hand on the brake and the other on top of the car; the train had seven cars of slag, loaded in dumps; the engine Avas backing np; the car in front of him got off the track and was turned over, he jumped from the end of the sill and broke his ankle; could not get into the car; it AAras loaded Avith slag and he would have had to climb upon slag; the slag from the car in front of him scattered everyAvhere; the car he was standing on AAras torn in tAVO, in the middle, and the brake rod and brake AAdieel Avhere he Avas standing Avere broken into pieces; he set up íavo brakes and did all he could to stop the speed of the train; the train was running pretty fast and Avas pretty rocky; four cars left the track; it Avas a lieaA'y down-grade; train running about fifteen miles per hour; he Avas six cars from the engine; he had permission to make the change with Boggus, from SteAArart to AAdiose orders he was subject; right in between the cars Avas his place to stand, so that he could let off brakes Avlien they got the speed slackened; did not get speed slackened because engineer was Avorking steam. He was a railroad man of twenty years’ experience. He stated that he would haAre been killed if he had not jumped.
Boggus’ testimony, so far as it touched on these points, Avas about the same, and there was no evidence in conflict Avith the plaintiff’s, except as to the speed of the train — the defendant’s eAddence being that the train was running about eight miles per hour. If this testimony was true, Ave do not see hoAV contributory negligence, in the respect now under consideration, can be imputed to the plaintiff. It shows that he was at his proper place, and, Ave think, the jury could have draAvn no other inference from it, but that the best thing he could have done for his OAvn safety was to jump, as he did. We think, therefore, that charge numbered five given for the plaintiff, was not objectionable on the ground that it ignored this character of contributory negligence, and confined the question of contributory negligence to the plaintiff’s remaining in the service, with knowledge of the condition of the track. But the *588charge is objectionable for another reason. The plaintiff was not excusable on account of what Woodliff reported, in reference to the track, unless he believed and relied upon it, and was induced by it to continue in the service, when, on account of the condition of the track, he would not otherwise have done so. The charge ignores this predicate, and ought to have been refused. The giving of it was error.
The sixth charge requested by the plaintiff was properly given.
Charge one requested by the defendant ought to have been given.
Count seven of the complaint covered the case of a mismatched switch. Wherefore charge two requested by the defendant was properly refused.
Defendant’s charges 8, 4 and 5 were properly refused.
The general charges on the whole case, and the several counts were properly refused, except as to the sixth count for the reason .that the allegation of that count that the name of the person guilty of the alleged negligence was unknown to the plaintiff, was disproved by the undisputed evidence, and the general charge, on that count ought to have been given. — L. & N. R. Co. v. Bouldin, 110 Ala. 185. The allegation is not authorized to be made as a mere form, to be lost sight of in the proof. It is substantial, and when made there can be no recovery under the count making it, if the proof shows it was not true, as in this case.
For the errors mentioned, the judgment is reversed and the cause remanded.
Reversed and remanded.