Louisville & Nashville Railroad v. Hawkins

92 Ala. 241

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

McOLELLAN, J.

The complaint is drawn under clause 1 of section 2590 of the Code, and it pursues the language of that statute in charging defendant’s xxegligence in respect of the defect which is alleged to have caused the injury. It -was said in C. & W. Railway Co. v. Bradford, 86 Ala. 574, that iix a complaint drawix under the clause in question, facts would probably have to be alleged showing that the defect arose from, or had not been discovered or remedied, owing to the negligence of the master or employer, or of some person in his service entrusted with the duty of seeing that the machinery, &c., was in proper condition. There is no reason, however, for requiring a greater degree of particularity in the averment of negligence under this'statute, than, is required with respect to any other negligence counted on for a recovery of damages; and the “facts” to be alleged in either class of cases are little, if any, more than the mere conclusions of the pleader, leaving the factors which enter into and support the conclusions to be adduced in the evidence.—Leach v. Bush, 57 Ala. 145; M. & M. Railway Co. v. Crenshaw, 65 Ala. 566 ; S. & N. R. R. Co. v. Bees, 82 Ala. 340; L. & N. R. R. Co. v. Jones, 83 Ala. 376; Western Railway Co. v. Sistrunk, 85 Ala. 352; Western Railway Co. v. Lazarus, 88 Ala. 453; E. T., V. & Ga. R. R. Co. v. Watson, 90 Ala. 41.

The present complaint alleges, inter alia, that the defect counted on existed before the injury was inflicted, and that it arose from or had not been discovered or remedied owing to defendant’s negligence, or the negligence of some one intrusted with the duty of seeing that the machinery &c., &c., was in proper condition. If the defect arose from negligence of the defendant, or negligence for which it would be responsible, it is wholly immaterial how long it had existed before the accident ; a moment would suffice. If it did not so arise, the averment that it had not been discovered or remedied owing to negligence chargeable to defendant imports that it had existed sufficiently long to have been discovered and remedied: by the exercise of due care on the part of defendant, or some one charged by it in that behalf. The complaint is sufficient, and the demurrers to it were properly overruled.

The injury complained of was received by plaintiff, who' was a brakeman, while attempting to uncouple an engine from the car next to it. Defendant’s third plea sets up plain tiff’s contributory, negligence in answer to the complaint, as follows; “The defendant says . . . that, at and before the time of the alleged injury, defendant had adopted and promulgated a rule whereby employés of defendant were required, before attempting to make or unmake a coupling, to examine so as to know the condition of the draw-head, draw-bars and coupling-apparatus, and forbidding its employés from going in between the cars to make or unmake coupling till they had taken the precaution aforesaid, and until they were satisfied it was safe to. make or unmake the coupling; and defendant avers that had the plaintiff observed this rule, he would have discovered the defect of which he complains, and could have avoided the-alleged injury.” A demurrer to this plea, proceeding on the ground that it did not aver that the plaintiff had knowledge or notice of the rule relied on therein, was sustained; and that action of the trial court is assigned as error.

There are not a tew expressions in our decisions which assume the true doctrine in this connection to be that contributory negligence of an employé can.not be predicated of conduct violative of an adopted and promulgated rule of the employer, and on the ground only of such violation, unless the employ^, as matter of fact, knew or had notice of such rule. These expressions are to be found in the following cases. Ga. Pa. Rwy. Co. v. Propst, 83 Ala. 518: Pryor v. L. & N. R. R. Co., 90 Ala. 32; L. & R. R. Co. v. Watson, 90 Ala. 68; Hissong v. R. & D. R. R. Co., 91 Ala. 514; 8 So. Rep. 776. The question was not directly presented and squarely decided, however, in any of these eases, unless it be that of Ga. Pac. R. R. v. Propst, 83 Ala. 518. But in the case of L. & N. R. R. Co. v. Perry, 87 Ala. 392, it was fairly presented and directly ruled .upon, involving indeed the fate of the case in this court. In that case the following charge was requested by the defendant and refused: “The regulation forbidding brakemen to make a. coupling without the use of a coupling stick is a reasonable and proper regulation; and if the jury believe that at and before the happening of the injury complained of in this case, there was in force and duly promulgated a regulation of said railroad company, forbidding brakemen to make a coupling without the use of a coupling stick, then the jury might line! for the defendant, unless they also find that such injuries were caused by the wanton or intentional act of the defendant or its servants, or by such recklessness as amounts to indifference to plaintiff’s safety.” The Court by íSomerviluo, J., in considering this and two succeeding charges which involved the same imputation of negligence to the plain-, tiff from his violation of an adopted and promulgated rule of the employer, declared that “the other three charges requested by the defendant withdrew from the jury all inquiry as to plaintiff’s knowledge or notice of the existence of the rule forbidding the coupling of cars without the use of a stick. In the absence of this element of fact, the question of negligence vel non was properly left to the jury.—Ga. Pac. R'w. Co. v. Propst, 83 Ala. 518, 521.” It thus appears to be the settled •doctrine in this State, that the adoption and promulgation by the employer of a rule for the guidance of the employé does not charge the latter with a knowledge thereof, so as to impute negligence to him with respect to conduct in violation of it, but that to such end it is essential that knowledge of its existence and provisions must be brought home to him. In other jurisdictions, we have found no adjudication directly opposed to this view, but one which militates against it (Alexander v. L. & N. R. R. Co., 83 Ky. 590), and quite a number which directly support it.-— Wolsey v. Lake Shore R. R. Co., 33 Ohio St. 227; Pilkinton v. Gulf R'w. Co., 70 Tex. 226; Covey v. H. & St. J. R'w. Co. 27 Mo. Aff. 170; Atchinson R'w. Co. v. Plunkett, 27 Kan. 188; s. c. 2 Am. & Eng. R. R. Cas. 127; Sprong v. B. & A. R'w. Co., 58 N. Y. 56; Lease v. N. P. R'w. Co., 39 Fed. Rep. 487; and this doctrine is affirmed by text-writers. 14 Am & Eng. Ency. of Law, pp. 908-9; Wood Mast, ds Ser’t., § 401. We are satisfied of its corred ness, and adhere to and reaffirm it. The plea was open to the objection taken by the demurrer. The mere violalion of an adopted and promulgated rule’, resulting in the injury complained of, is not of itself contributory negligence which will defeat a recovery ; the employé must have known of the rule. Without averment of his knowledge the plea presents no defense to the action. The demurrer to it was properly sustained.

The 4th plea is bad in that it denies a right of recovery, if" the employé knew or could, I>y the exercise of ordinary oare, have knoion of the defect, &c., &c. That is not the law. It is the duty of the employer to furnish reasonably safe apjfiiances. The employé may assume that the appliances so furnished are free from defects. The statute, under which this suit is prosecuted, itself is decisive of this question. It provides for non-liability of the employer, so far as this point is concerned, when the servant or employé knew — not when he might or should have known — of the delect or negligence causing the injury, and failed to give information thereof, &o., &c. — Code, §2590.

We find no error in the record and the judgment is affirmed.,