To refute liability in this case, the defendant contends: (1) That the timber was not placed too near the train track for the safety of workmen, but was properly stationed as it was; (2) that even if improperly stationed too near the track, the injury to plaintiff was nevertheless casual, and not to be reasonably anticipated from such a condition; and (3) in any case plaintiff negligently contributed to his injury by his mode of procedure in uncoupling the cars.
The trial judge erroneously told the jury, in his oral charge, that the question as to negligence would be whether or not this post was in fact "too near the rail." This statement of the issue manifestly informs the jury that, if the post in question was "too near" the track, its maintenance in that position was negligence as a matter of law. Apart from the wholly uncertain application of the phrase "too near," this withdrew from the jury the question of the feasibility of any other mode of supporting the roof at that point, and also the question of plaintiff's injury being a natural and probable result to be anticipated from such a location, both of which questions rested upon inferences from the evidence, to be drawn only by the jury. Defendant's exception to this part of the oral charge should have been sustained.
The trial judge refused to give for defendant an instruction that, unless the timber was negligently placed in a place and way that was "ordinarily dangerous," and unless plaintiff was not injured by some other proximate cause, the verdict should be for defendant. The first clause was at least misleading, since it may fairly be understood to mean that the maintenance of such a defect is not actionable negligence, unless it would ordinarily threaten injury, without regard to co-operating causes which are unusual, but which must nevertheless be anticipated as within the range of natural and probable mischance.
So far as we discover from the record, there is no testimony tending to show that plaintiff attempted to uncouple the cars while they were in motion. Charges 11 and 12, hypothesizing such an attempt, were therefore abstract, and were properly refused. Moreover, that theory of the case was sufficiently presented to the jury in given charges 6 and 8.
The mere fact that no employé had ever before, throughout many years of operation, been injured by contact with this post, while strongly persuasive, does not, as a matter of law, disprove negligence in its maintenance. The true rule, quoted from *Page 676 Ray on Negligence of Imposed Duties, pp. 137, 138, will be found in Bivins v. G. P. Ry. Co., 96 Ala. 325, 327, 328,11 So. 68, 69:
"That which never happened before, and which in its character is such as not naturally to occur to a prudent man to guard against its happening at all, cannot, when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening, and guarding against that remote contingency."
Charge 21 was therefore properly refused.
Given charge 20 instructed the jury that, if the evidence shows that "the manner in which the track and props, posts or upright timbers were placed and constructed had uniformly proved adequate and safe prior to the alleged injury, it was not negligence for the defendant to have continued to use the same in the manner in which they were placed to the time of the alleged injury." The undisputed evidence is that no accident had occurred at this particular point during an operation of six or seven years. Defendant therefore insists that the verdict for plaintiff was contrary to the court's instruction in charge 20. A comparison between the charge and the proof relied on will clearly show the invalidity of this contention.
Defendant insists, also, that the evidence shows, as matter of law, that the action of the driver, Kit Carter, in starting the cars while plaintiff was between or on them, was the independent and efficient cause of the injury, and therefore its sole proximate cause in law. We think, however, that this question, and the question of contributory negligence in its several aspects, were questions for the jury, and that affirmative charges thereon for defendant were properly refused.
The mere fact that plaintiff saw another way of acting, when suddenly called upon to extricate himself from his dangerous position, though it would have conserved his safety, does not per se render him guilty of contributory negligence in resorting to the mode of escape he actually adopted. To have this effect, the danger of the one, and the safety of the other, must be obvious to the reasonable and prudent observer; and, even then, in sudden emergency, the question of due care becomes one for the jury. T. C. I. R. R. Co. v. Herndon,100 Ala. 451, 14 So. 287.
It was proper for plaintiff to testify to the rate of his earnings at the time of his injury, to be considered by the jury upon the question of compensation for permanent decrease of earning power, which was an issue in the case. Its consideration was expressly so limited by the instruction of the court.
Witnesses who qualified as experts were properly allowed to state their opinion that a place for work constructed like this one was not a proper place to work; or, more specifically, that the post was too near the track for the safety of workmen. Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604.
It was not competent for defendant to ask plaintiff — in reference to an alleged call by the driver to plaintiff just before the injury, and plaintiff's alleged response of "all right" thereto — if that was not "the usual way of doing in that entry." The fact that drivers in general were accustomed to calling to the man uncoupling their cars, "How about it?" had no legitimate tendency to show that Carter did so in this instance. Custom may often be admissible to fix a duty, but not to show that it was or was not thus performed in a particular instance.
The fact that the state mine inspector had inspected these mines, and raised no objection to the construction here complained of, is not admissible to show that the construction was proper, in the absence of a statute authorizing him to prescribe or approve the construction and proof that he had done so. Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604.
For the error pointed out, the judgment must be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.
On Rehearing.