GARDNER, J.
The correctness of the statement of facts set out in the brief of counsel for appellant is not questioned by opposing counsel on this appeal, and so much thereof as is here pertinent will be set out in the report of the case, and will be considered as accurate and sufficient, as provided by rule 10 (175 Ala. xviii, 61 South, vii). We may add, however, that a study of the record convinces us of the accuracy of such statement in all material particulars.
There are numerous questions presented as to the sufficiency of the several counts of the complaint, but we deem it unnecessary to here consider them, as we conclude the case must be reversed upon the questions which raise the substantial merits of the cause.
[1]
As preliminary to all other questions upon the merits of the cause, appellant’s counsel insist that there is no evidence from which reasonable inference can be drawn that plaintiff’s intestate was, at the time of his injury, acting within the line and scope of his authority. While the evidence upon this question is very meager, yet, upon careful consideration of the same, we are persuaded that it suffices for the jury to draw a reasonable inference that, at the time of the fatal accident, intestate was in search of his tools under direction of his foreman, which he had left under the shed on the evening before. We think, therefore, that it could be reasonably inferred that said intestate was acting within the line and scope of his employment. L.
&
N. R. R. Co. v. Chamblee, 171 Ala. 188, 54 South. 681, Ann. Cas. 1913A, 977.
[2]
Count 5 rests for recovery upon the negligence of one Ralston, in that he failed to discharge his duty in giving signals of the movement of the engine. The affirmative charge was due the defendant on this count. Evidence for the plaintiff shows that Ralston gave his usual signal on this occasion-. To quote the testimony of one of the witnesses for the plaintiff:
“Mr. Ralston had been down there and given warning between each car; that is, he sounded a warning between the third and fourth cars,
and the fifth and sixth ears. In addition to that, he set the knuckles of those cars for coupling. * * * He goes and halloos between the cars.”
The testimony of other witnesses showed that when he gave the warning he said, “Lookout; we are fixing to pull track No. 1.” We are unable to find from this record wherein there is any testimony from which it could be inferred that Ralston failed to give the warning as alleged in said count.
[3]
We are of the opinion that a like result is to he reached’ from a consideration of those counts charging negligence on the part of the engineer, McDermott. The cars were being coupled one at a time, and the engine was moving at the slow pace of one or two miles an hour. The undisputed evidence shows that the engineer could not see plaintiff’s intestate, as he was on the opposite side of the track and the cars obstructed his view. He had to slowly move his engine in response to the signals given him, and as each car was coupled the engine came to a stop; as the engine moved the bell was rung. The evidence is silent as to whether or not there was any blast of the whistle, or as to whether or not, under the circumstances here disclosed, the whistle should have been blown.
[4]
We are not favored with a brief by counsel for appellee, but from a careful study of the record we cannot conceive where any negligence has been shown on the part of the engineer in charge of this engine, unless it be considered that the whistle should have been blown. The burden of proof was upon the plaintiff, and we are pursuaded that this burden has not been sufficiently met, and that the affirmative charge should have been given upon these counts.
Count 7 we construe as relying for recovery upon the failure of the master', in discharge of his common-law duty, to furnish the plaintiff’s intestate a safe place in which to work. The failure of this common-law duty rests upon the averment that the defendant did not have a watchman stationed at this particular opening between these cars. It is shown from the record that these cars are first placed upon this track in the form of frames only, and remain there until their completion, when they are “pulled out.” This was being done when plaintiff’s intestate received his fatal injury. The danger here complained’of occurred only periodically, and the negligence complained of related to the manner of doing the work. In Langhorne v. Simington, 188 Ala. 337, 66 South. 85, it is said:
“It is generally considered that the rule requiring an employer to provide his employe with a safe place does not operate ‘where the prosecution of the work itself makes the place and creates its dangers.’ ”
[5]
We are of the opinion that, under the influence of this authority, the affirmative charge should also have been given at the defendant’s request as to this, count.
[6] But, aside from the foregoing considerations, we are persuaded that the defendant was entitled to the affirmative charge on the ground of the contributory negligence of plaintiff’s intestate. It is to be observed that said intestate’s place of work was some 400 or 500 feet from the place of his injury; that he was merely crossing the track, going to some place under the shed in search of his tools. He was therefore not working upon this track, and does not come -within the influence of what was said in L. & N. R. R. Co. v. Williams, 74 South. 382,
wherein Mr. Thompson’s work on Negligence, § 1839, is quoted approvingly. In Labatt on Master and Servant, § 332, it is said:
“A servant is not in the exercise of ordinary care, unless, at each stage in the progress of his work, he makes an effective use of his bodily and mental faculties, and observes as attentively as is reasonably possible under the circumstances the condition of the instrumentalities by which his safety may be affected, and the result of their operation by himself or others, in so far as that operation may tend to subject him to danger.”
In subdivision (b) of the same section is:
“It has been expressly held that the rule of law which excuses passengers from the obligation to observe a strict lookout for trains and locomotives when alighting from or getting upon trains over the tracks of a railway company does not apply to employés whose duties may require them to cross the tracks in the yards or at the station houses. The obligations of an employe under these circumstances have sometimes been considered to be virtually the same as those incumbent upon travelers who are about to use a highway crossing, viz., to look and listen before going on the track.”
To like effect see Dyerson v. Union Pac. Ry. Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207. The following are some of the cases supporting this view: L. & N. R. R. Co. v. Williams, 172 Ala. 560, 55 South. 218; Andrews v. Birmingham Min. Ry. Co., 99 Ala. 438, 12 South. 432; L. & N. R. R. Co. v. Hall, 87 Ala. 708, 6 South. 277, 4 L. R. A. 710, 13 Am. St. Rep. 84.
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GARDNER, J.
The correctness of the statement of facts set out in the brief of counsel for appellant is not questioned by opposing counsel on this appeal, and so much thereof as is here pertinent will be set out in the report of the case, and will be considered as accurate and sufficient, as provided by rule 10 (175 Ala. xviii, 61 South, vii). We may add, however, that a study of the record convinces us of the accuracy of such statement in all material particulars.
There are numerous questions presented as to the sufficiency of the several counts of the complaint, but we deem it unnecessary to here consider them, as we conclude the case must be reversed upon the questions which raise the substantial merits of the cause.
[1]
As preliminary to all other questions upon the merits of the cause, appellant’s counsel insist that there is no evidence from which reasonable inference can be drawn that plaintiff’s intestate was, at the time of his injury, acting within the line and scope of his authority. While the evidence upon this question is very meager, yet, upon careful consideration of the same, we are persuaded that it suffices for the jury to draw a reasonable inference that, at the time of the fatal accident, intestate was in search of his tools under direction of his foreman, which he had left under the shed on the evening before. We think, therefore, that it could be reasonably inferred that said intestate was acting within the line and scope of his employment. L.
&
N. R. R. Co. v. Chamblee, 171 Ala. 188, 54 South. 681, Ann. Cas. 1913A, 977.
[2]
Count 5 rests for recovery upon the negligence of one Ralston, in that he failed to discharge his duty in giving signals of the movement of the engine. The affirmative charge was due the defendant on this count. Evidence for the plaintiff shows that Ralston gave his usual signal on this occasion-. To quote the testimony of one of the witnesses for the plaintiff:
“Mr. Ralston had been down there and given warning between each car; that is, he sounded a warning between the third and fourth cars,
and the fifth and sixth ears. In addition to that, he set the knuckles of those cars for coupling. * * * He goes and halloos between the cars.”
The testimony of other witnesses showed that when he gave the warning he said, “Lookout; we are fixing to pull track No. 1.” We are unable to find from this record wherein there is any testimony from which it could be inferred that Ralston failed to give the warning as alleged in said count.
[3]
We are of the opinion that a like result is to he reached’ from a consideration of those counts charging negligence on the part of the engineer, McDermott. The cars were being coupled one at a time, and the engine was moving at the slow pace of one or two miles an hour. The undisputed evidence shows that the engineer could not see plaintiff’s intestate, as he was on the opposite side of the track and the cars obstructed his view. He had to slowly move his engine in response to the signals given him, and as each car was coupled the engine came to a stop; as the engine moved the bell was rung. The evidence is silent as to whether or not there was any blast of the whistle, or as to whether or not, under the circumstances here disclosed, the whistle should have been blown.
[4]
We are not favored with a brief by counsel for appellee, but from a careful study of the record we cannot conceive where any negligence has been shown on the part of the engineer in charge of this engine, unless it be considered that the whistle should have been blown. The burden of proof was upon the plaintiff, and we are pursuaded that this burden has not been sufficiently met, and that the affirmative charge should have been given upon these counts.
Count 7 we construe as relying for recovery upon the failure of the master', in discharge of his common-law duty, to furnish the plaintiff’s intestate a safe place in which to work. The failure of this common-law duty rests upon the averment that the defendant did not have a watchman stationed at this particular opening between these cars. It is shown from the record that these cars are first placed upon this track in the form of frames only, and remain there until their completion, when they are “pulled out.” This was being done when plaintiff’s intestate received his fatal injury. The danger here complained’of occurred only periodically, and the negligence complained of related to the manner of doing the work. In Langhorne v. Simington, 188 Ala. 337, 66 South. 85, it is said:
“It is generally considered that the rule requiring an employer to provide his employe with a safe place does not operate ‘where the prosecution of the work itself makes the place and creates its dangers.’ ”
[5]
We are of the opinion that, under the influence of this authority, the affirmative charge should also have been given at the defendant’s request as to this, count.
[6] But, aside from the foregoing considerations, we are persuaded that the defendant was entitled to the affirmative charge on the ground of the contributory negligence of plaintiff’s intestate. It is to be observed that said intestate’s place of work was some 400 or 500 feet from the place of his injury; that he was merely crossing the track, going to some place under the shed in search of his tools. He was therefore not working upon this track, and does not come -within the influence of what was said in L. & N. R. R. Co. v. Williams, 74 South. 382,
wherein Mr. Thompson’s work on Negligence, § 1839, is quoted approvingly. In Labatt on Master and Servant, § 332, it is said:
“A servant is not in the exercise of ordinary care, unless, at each stage in the progress of his work, he makes an effective use of his bodily and mental faculties, and observes as attentively as is reasonably possible under the circumstances the condition of the instrumentalities by which his safety may be affected, and the result of their operation by himself or others, in so far as that operation may tend to subject him to danger.”
In subdivision (b) of the same section is:
“It has been expressly held that the rule of law which excuses passengers from the obligation to observe a strict lookout for trains and locomotives when alighting from or getting upon trains over the tracks of a railway company does not apply to employés whose duties may require them to cross the tracks in the yards or at the station houses. The obligations of an employe under these circumstances have sometimes been considered to be virtually the same as those incumbent upon travelers who are about to use a highway crossing, viz., to look and listen before going on the track.”
To like effect see Dyerson v. Union Pac. Ry. Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207. The following are some of the cases supporting this view: L. & N. R. R. Co. v. Williams, 172 Ala. 560, 55 South. 218; Andrews v. Birmingham Min. Ry. Co., 99 Ala. 438, 12 South. 432; L. & N. R. R. Co. v. Hall, 87 Ala. 708, 6 South. 277, 4 L. R. A. 710, 13 Am. St. Rep. 84. In this latter case, speaking of the duty of the employé in the exercise of precaution, the court said:
"And taking into the account the surroundings and perils attendant upon the nature of the service he enters upon, he must bestow such care, watchfulness, and caution as ordinarily prudent men would usually exercise in reference to their own safety, under like circumstances. * * ® He is guilty of contributory negligence if, in his care, diligence, and watchfulness, he falls below the standard stated above.”
Intestate was killed while attempting to walk between the fifth and sixth cars, which were at the time being coupled preparatory to their removal from the shed. He had, just the evening before, quit work on these cars as they were completed. He had been at work in that place for the period of a year, and clearly must have known that the cars were to be removed soon after their completion—as was the custom—to make room for others. It is without dispute that as the engine moved the bell rang, and the cars were being coupled at the same time. Mr. Stewart, witness for the plaintiff, testified that he saw intestate’s feet while he was walking along by the fifth car for a distance of 10 or 12 feet; that the engine was putting this cut of cars in motion, engaged in coupling them one to another ; to use the language of the witness:
“Before Mr. Naugher turned to go in between the fifth and sixth cars, I would say it had been about a minute since this engine and car had coupled to the third "car; then the third car coupled to the fourth car, and then after that the fourth car coupled to the fifth car, and when it was in the act of coupling to the sixth ear, then is when Mr. Naugher was killed. * * • Each of these couplings was attended with a more or less knocking noise. * * * I did not see him hesitate; he walked right straight, without stopping, or anything, in between the fifth and sixth cars; he just turned in between them as quick as he came to them.”
In addition to this testimony, the witness stated that Ralston had set ' the knuckles between the cars ready for coupling\ an(l that this was visible to a man from either side; that is, that any railroad man would know that the knuckles were open, and would not have to go between the cars to ascertain that fact. The evidence is without conflict that, notwithstanding the noise attendant upon the coupling of the cars, the ringing of the bell of the engine, and notwithstanding there was evidently some motion of the cars at the time the intestate was walking along the side of the fifth car, he (intestate), without the slightest hesitation, turned quickly between the fifth and sixth cars, attempting to pass through, and was caught between the couplings as the cars were being coupled together. The testimony of plaintiff’s witness, from which the above quotation is taken, also shows that, in addition to this warning, the knuckles were open and plainly visible to intestate, who was a man of normal eyesight and hearing, and which was a warning within itself that the cars were ready to be coupled. Had he looked, he must have seen, or had he listened, he must have heard and known, the danger, and had he hesitated, even for a moment, he would doubtless have been saved.
We have read the record a second time with much care, and with a full appreciation of the responsibility resting upon us, and its careful study forces the conclusion irresistibly upon the mind that the proximate cause of intestate’s untimely death was his own thoughtlessness and inattention to the dangers surrounding him. We need not discuss the evidence in detail, nor cite an array of authorities upon the question of'contributory negligence, but content ourselves with what is said above as sufficient in disclosing our conclusion that the plaintiff was barred of recovery on account of the contributory negligence on the part of her intestate.
It results that the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.
ANDERSON, O. J„ and SAYRE and BROWN, JJ., concur.