The appellee seeks a modification of the opinion, in so far as it holds that the question *Page 131 of coupling the air brakes is in nowise a material factor in this case. Counsel do not question the holding that the failure to have the air couplings was not the proximate cause of the injury or death of the intestate, but contend that it was open to the jury to find that Mose Williams was, at the time he was killed, between the cars or under the train in the performance of a duty to couple the air brakes in obedience to a mandatory duty imposed by the statute so as to impose upon McKenna, who had taken charge of the operation of the train, to exercise proper diligence to see that he was not in a place of danger before starting the train in motion. There might be merit in this contention, but for the fact that the undisputed evidence relieved McKenna of any reason to expect or anticipate that Mose Williams was between the cars for the purpose of making the air connection. In other words, the undisputed evidence shows a rule or custom, existing at the time, known to both Williams and McKenna not to make the air coupling or hose connection upon switch movements of this character, and, even in cases when the connection was required, it was to be made by a servant or servants kept for that purpose, and was not to be made by Williams except when a "carman" was not available, and a carman was available on this occasion. Rules (I) and (H); also testimony of plaintiff's witness, McPherson. Said witness also testified: "As a fact, Mose Williams, himself, usually and customarily for a long time, and immediately prior to March 2, 1926, moved similar cuts of cars from the switch yard of the MO to the LN Interchange without any air being coupled on the cars."
The defendant's answer to interrogatory 9 is as follows: "Answering the ninth of said interrogatories, the defendant says that it had imposed upon none of its employees any duty to see that the air brakes were coupled upon the cut of cars which was being drawn by engine No. 11 at the time of the death of Mose R. Williams. This movement was a switching movement wholly within yard limits, and there were only ten cars in the cut, some of which were empty. It was not usual nor customary to couple air on such cuts of cars for such movements, and this custom and practice of not coupling air on such cuts of cars for such movements was known to Mose R. Williams, who had himself handled many such movements to the L. N. Interchange without having air coupled on any of the cars."
Plaintiff's witness Wachter said:
"We also have a general custom down there in the yard as to coupling air on the cars. In carrying cuts of cars in 1926, and prior thereto, in the yards of the M. O. at Mobile over the New Main Line to the L. N. Interchange, it was not usual or customary to couple the air on those cars where they move in the day time and consisted of not more than ten cars in the cut. At that time and about that time I did have occasion to observe Mose R. Williams in the handling of such cuts of cars from our switch yards to the L. N. Interchange." * * * "I have seen Mose R. Williams while acting as switch foreman handle and carry such cuts of cars from the M. O. switch yard to the L. N. Interchange without having air coupled. I have seen him do so several times. * * *"
"In March, 1926, and prior thereto, there was no duty on the part of the yardmen, including the switch engine foreman, or switchmen under him, except when car inspectors were not available, to couple air on the cars in any case where air was required. The car inspectors and carmen coupled the air when it was required. I said the trainmen, or the yardmen, never did couple air when the carmen were available. We did at this time have carmen present in the switch yard at a point nearby these tracks. We kept at that time, and prior to that time carmen on duty in the yard at all times, day and night. They had a particular place — at their shanty, where they might be called at any time."
In view of this uncontradicted evidence, we fail to see upon what theory McKenna, or any other servant of defendant, connected with the switching or movement of these cars, was under the duty to expect or anticipate that the intestate was between or under the cars making the air coupling. Of course, we do not mean to hold that the defendant had the right to adopt a rule or custom in violation of the statute, but we have held that, if the statute was violated, said violation was not the proximate cause of the intestate's death and, as to the other question, we do not think the defendant's servants were charged with conducting themselves under the statutory requirements as against the plain rules and customs of the master. We are still of the opinion that the question of air coupling was not a material factor in the trial of this case for any purpose.
Upon the last appeal, 221 Ala. 402, 129 So. 60, 64, the opinion states: "There was evidence also that the air couplings on this cut were not connected; that it was the duty of decedent to 'help out with coupling the air hose,' that in movements of this kind the cars 'generally have the air hose all coupled up.' There was dispute as to both the latter statements."
We have not examined the former record, but if the quoted statement is supported by the evidence as there disclosed it is not supported by the evidence as disclosed in the present record, and which we have endeavored to demonstrate. The statement that this question was put out of the case by the former opinion may be inaccurate; but it is sufficient to say it had no place in the last trial as disclosed *Page 132 by the evidence, and should not be considered upon the next trial, unless there is a material change in the evidence from what is disclosed by the present record.
Upon Appellant's Motion for a Modification of the Opinion. The appellant insists that it was entitled to the general charge. While some importance seems to be attached in the opinion in 221 Ala. 402, 129 So. 60, to what was then regarded as a dispute in the evidence as to the custom of air couplings and the duty of the intestate to help make them, this was but one or an alternative reason for holding that the defendant was not entitled to the general charge. In other words, irrespective of this question, it was there held that the jury could infer negligence on the part of McKenna or Holder, one or both, in permitting the movement of the cars without first ascertaining that the decedent was not in a place of danger; that they did not use proper diligence to locate him or, if they did, they might have discovered him; that he had to go from one side to the other to check some of the seals, and the fact that he was not seen on one side did not relieve them from looking to the other side or under the car. True, the defendant claims that the intestate told or indicated to McKenna that the inspection had been completed, but this was contradicted, inferentially at least, by the book found showing that the inspection had not been completed. At any rate, we still think it was a question for the jury as to the negligence of the defendant's servants in starting the cars. In citing the case N.Y. Central Railroad Co. v. Marcone, 281 U.S. 345,50 S.Ct. 294, 74 L.Ed. 892, we realized that it was not on "all fours" with the case in hand, but think that it gives some support to the present and two previous holdings that the defendant was not due the general charge.
Both applications denied.