Memphis & Charleston Railroad v. Graham

94 Ala. 545

• Court: Supreme Court of Alabama
• Decided: November 15, 1891
• Status: Published

Opinion

COLEMAN, J.

— The evidence shows that the plaintiff’s intestate, John L. Graham, whose regular employment was that of freight-car conductor, went between the cars while in motion to uncouple a freight car from a passenger car, and on account of a defective or broken drawhead, or coupling appliance, was crushed and killed. There was a platform to the passenger car next to the freight car, where the uncoupling was to be done. The defense was contributory negligence, and that plaintiff’s intestate came to his death in violation of a rule of defendant, which prohibited employés from going between the cars while in motion to uncouple them. The plea does not set out the rule, nor aver that plaintiff’s intestate knew of the existence of such rule. In the case of L. & N. R. R. Co. v. Hawkins, 92 Ala. 241; 9 So. Rep. 271, it was distinctly declared as the settled doctrine in this State, that the adoption and promulgation by an employer of a rule for the guidance of an employé does not charge the latter with knowledge thereof so as to impute negligence to him for its violation, but that to such end it is essential that knowledge of its existence be brought home to the employé. It was further held, that a plea setting up a violation of such rule as establishing contributory negligence was open to demurrer, which failed to aver knowledge of such rule. It is also well settled, that where issue is joined upon an insufficient plea, it becomes one of the issues to be tried by the jury, and that the defendant is entitled to the advantage of such plea, in the introduction of evidence in support of it, and in the instructions to be given by the court to the jury.- — Farrior v. Andrews, 69 Ala. 97.

A conductor who voluntarily, even though by the permission or acquiescence of the employer, undertakes to perform the duties of coupling or uncoupling cars, subjects himself to all reasonable rules and regulations prescribed by the employer for the government of those whose duty it is to perform this work. Rule 139 offered in evidence prescribes that “getting between cars in motion to couple or uncouple them is dangerous and in violation of duty. All employés are warned that, if they commit these imprudences, it will be at their own risk and peril.” This rule, or one similar to it, has been declared by repeated decisions of this court to be reasonable and “wholesome,” and that railroad companies were justifiable in adopting and enforcing it, for their own protection, and that of employés.— Ga. Pac. Railway Co. v. Propst, 90 Ala. 3; 83 Ala. 518; Pryor v. L. & N. R. R. Co., 90 Ala. 35; L. & N. R. R. Co. v. Watson, 90 Ala. 69.

When the authorities declare that the rule is “reasonable” and “wholesome,” it is with the qualification, or understanding, that the duties required may be performed consistently with the observance of the rule; and if the sticks furnished by the employer, as the evidence in this case tends to show, are so short that a coupling can not be made by their use without going between the cars, the rule which forbids employés from going between cars to effect a coupling while in motion would afford no protection to the master, if the duty imposed necessitated its non-observance. The rule which requires the use of sticks to make couplings is “reasonable” and “wholesome,” and an employé having knowledge of the rule, and provided with a stick by which this duty can be performed without going between the cars, and in violation of the rule, without urgent and excusable necessity, goes between the cars, and is thereby inj ured, is guilty of contributory negligence of an aggravated character, and his remedy is gone. Beach on Contrib. Neg., § 141; Pryor v. L. & N. R. R. Co., supra ; Ga. Pac. Railway Co. v. Propst, 83 Ala., supra.

There is no evidence to show that cars can be uncoupled by the use of a stick, and we presume sticks as now prepared can not be used for that purpose. In referring to the use of sticks, the rule prescribes that they must be used for making couplings, not uncouplings.

In considering this case, we have kept in view the fact, that the injured person was the conductor himself, authoritatively exercising control over the engineer and brakemen, and the movement of the 'cars. Is there any evidence to' show that the work of uncoupling the cars could have.been'performed in an apparent safe way, which deceased did not adopt, or that the condition of the cars was such that they’ could not be uncoupled with reasonable safety except by going between them, or that the company had waived its right to insist upon an observance of this rule? As a legal proposition, independent of any rules provided by the master, if an employé selects a dangerous way to perform a duty, knowing it to be attended with danger, when there is a safe way apparent to him, and he undertakes to perform the duty in' the dangerous way, and in consequence thereof is injured, he is guilty of such contributory negligence as to cut off all legal remedy for the injury. — L. & N. R. R. Co. v. Orr, 91 Ala. 548; 8 So. Rep. 364; Railroad Co. v. Holborn, 84 Ala. 137; Highland Ave. R. R. v. Walters, 91 Ala. 435; 8 So. Rep. 360.

The act of uncoupling cars while in motion by going between them does not necessarily constitute contributory negligence, under all circumstances. — Goodrich v. R. R. Co., 15 Amer. St. Rep. 412. It is, however, necessarily an act attended with more or less danger. There was evidence introduced on the trial which tended to show that the cars, on account of their condition, could not have been uncoupled from the platform of the passenger car; but there was evidence tending to show that the uncoupling could have been effected in this way with perfect safety, and that that was the proper way under the ■circumstances existing in this case. Applying the principle of law declared in the Orr Case and Holborn Case, supra, in regard to the duty of an employé when there is a dangerous way and a safe way to perform an act, the court was in error in refusing to give charge No. 11 requested by appellant. It is contended by appellee that this charge and other charges were properly refused under the authority of L. & N. R. R. Co. v. Perry, 87 Ala. 394, because the charges failed to hypothesize the question of knowledge or notice of the existence of the rule. The plea in the present case failed to aver knowledge or notice, and issue was joined upon it in its insufficient condition. The fact of knowledge or notice was not an issue before the jury, and the charges requested were not objectionable for ignoring an outside issue. — L. & N. R. R. Co. v. Watson, 90 Ala. 68; 87 Ala. 394, supra. It may be that, ordinarily, freight or box cars which have no platform can not be uncoupled without going between the cars; but this would not excuse an employe! who failed to use the platform, if there was one, and the use of the platform was obviously the safer way.

A disputed question in the case arises upon the proper construction of Rule 201, which requires freight-car conductors “to assist in the shifting and making up of trains.” In behalf of plaintiff, evidence was introduced tending to show that, under the rule, it was the custom, and had been for many years, for conductors to couple or uncouple cars, and that at times all the conductors on the road performed this duty, and it was generally understood that the word “assist” included this duty. One witness testified that he had seen every conductor on the road assist in this way in coupling or uncoupling cars. For appellant it was contended, that coupling and uncoupling was the duty of brakemen only, and the word “assist” meant that conductors should superintend and “give the proper signals.” We think the evidence of custom on this question was properly received. Rules for the government of employésshould be written with precision, and be free from ambiguity. The principle of law is, “that parol evidence of usage is admissible to explain terms ambiguous or doubtful in significance, or from which to infer the intention, understanding and agreement of the parties, and to incorporate a stipulation or element wherein'the contract is silent.” — East Tenn., Va. & Ga. R. R. Co. v. Johnston, 75 Ala. 604; Barlow v. Lambert, 28 Ala. 704. The court properly received evidence which tended to show the meaning of the word “assist” as used in Rule 201, and the evidence on this point being in conflict, the determination of the disputed fact was a question for the jury.

Evidence of usage and custom for many years, on the part of brakemen, to go between the cars, while in motion to make an uncoupling, was introduced to show that Rule 139, which prohibits this mode of coupling and uncoupling, was not insisted upon by the railroad company, and was not binding-upon the employés. The rule is clear and explicit in terms, free from ambiguity or equivocation. It does not “palter in a double sense.” Mr. Greenleaf, vol. 2, § 251, says, “the true’ office of a usage or custom is to interpret the otherwise indeterminate intention of parties, to fix the meaning of words and expressions of doubtful or various senses.” In the case of East Tenn., Va. & Ga. R. R. Co. v. Johnston, 75 Ala. 604, this court declared that evidence of usage or custom will not be received when it varies or contradicts the express terms of a contract. — Barlow v. Lambert, 28 Ala. supra. “When persons enter into express stipulation, it is a reasonable rule, subject only to a few exceptions, that neither custom or usage will be allowed to dispense with such express stipulations.” M. & E. R. R. Co. v. Kolb, 73 Ala. 401. The rule has been declared to be “reasonable” and “wholesome.” It was adopted for the protection of the company, and for the safety of its employés. Evidence of usage and custom of its violation by those it was intended to protect, either to exempt them from its obligations, or to subject the company -to' damage because of its repeated violation, does not come within the exception, and such evidence is inadmissible. The case of Hissong v. Richmond & D. R. R., 91 Ala. 518, does not in any manner conflict with the rule here declared.

So far as Rule 140, or any other rule, militates against the liability imposed upon the employer or master under section 2590, or contravenes the principle of law which requires the employer or master to furnish and maintain suitable material and appliances for the safe prosecution of its business, and the right of the employé to presume that this has been done, it will be regarded as wholly inoperative, and afford no protection to the employer or master; but, so far as Rule 140 imposes the duty upon employés io examine for their own safety the condition of the car, engines and machinery, &c., before using them, or exposing themselves on or with the same, so as to ascertain as far as reasonably can be done their condition and soundness, it is reasonable and proper.

It can not be expected of car conductions or brakemen to make the same careful examination, and to be able to discover defects to the same extent as that expected and required of the employer or master, or person intrusted generally with this duty for the public safety, or safety of employés; but the character of the general duties to be performed by conductors and brakemen is such that they necessarily become more or less familiar with the appliances and machinery constantly in their use and under their supervision, and know to some extent when they are not in proper condition for safe use. To the extent of their information and the opportunities afforded to make such examination, consistently with their other duties and the circumstances attending, they should observe and obey the rule.

Whether the deceased was negligent in not making such examination, or whether the defect was of that character that it could not have been discovered upon such examination as it, was his duty to make, and whether he did conform to the rule, and failed to discover the delect, is a question of fact for the jury. We do not think a conductor or brakeman is “a person in the service of the master or employer intrusted with the duty of seeing that, the ways, works, machinery or plant were in proper condition,” within the meaning of subdivision 1 of section 2590 of the Code ; and our understanding of the rule of the company is, that the duty imposed upon conductors and brakemen to examine the machinery and appliances devolves upon those conductors and brakemen who are using; the machinery, ways, works, &c. in question. The fact that a brakeman or conductor of some other train, at a former period,, may have noticed the defect, and neglected to report such, did not exempt the conductor whose duty it was to use the defective appliance or machinery from making the examination for his own safety as required by the rule.

The Employer’s Act does not,and never was intended to, take from the master the defense of contributory negligence.— C. & W. Railway v. Bradford, 86 Ala. 579 ; M. & B. R. R. Co. v. Holborn, 84 Ala. 133. The principles of law declared in Orr v. L. & N. R. R. Co., and R. R. Co. v. Holborn, as to what constitutes contributory negligence on the part of an employé, may be applicable to two phases of the tendencies of the testimony in this case; that which defines when an employé must select the safer way to perform a duty, and also when an employé assumes at his own peril that proper appliances have been provided by the master. The jury is the sole judge whether the facts bring the case within their application.

The general charge of the court, considered as a whole, with but few exceptions, is a clear and correct exposition of the law as applicable to the many questions raised by the evidence. The court, however, should not have left it to the jury to say whether the rule was reasonable, which requires that employés shall use a stick in coupling cars, or which prohibits them from going between cars while in motion to couple or uncouple. As a matter of law, the rule is reasonable. When the proof shows thát the company refused to furnish sticks, or that the duty' required, on account of the appliance or other proper causes,.could not be performed without a violation of the rule,, the master can -not invoke the rule for its protection. In such cases, the court might and should hypothesize the enforcement of the rule upon the finding of the jury as to these facts.

We have attempted to limit and define the proper boundaries of usage and custom as applicable to the facts in this case.

Charge No. 1 requested by the defendant was properly refused. Charge No. 3 is abstract, as there is no evidence tending to show the car was in Huntsville prior to October. Charges, 2, 4, 5, 7, 9 and 10 were faulty, in ignoring the evidence which tended to show that, on account of the condition of the appliance, the duty could not be performed except by going between the cars. Charge 8 assumes that John L. Graham did not examine the drawhead and coupling apparatus. This was a fact to be determin3d by the jury. Charge 11 states the law very clearly, as we understand it, and ought to have been given. Charge 6 also ought to have been given. If desired, and the evidence justified it, an explanatory charge should have been requested by appellee.

Reversed and remanded.

Walker, J. not sitting.