SOUTHERN RY. CO. v. HARDIN, 157 F. 645

PARDEE, Circuit Judge (after stating the facts as above).

Aside from a nice question of pleading hardly affecting the real merits of the case and on which the authorities are conflicting and this court is divided, the plaintiff in error contends that the trial court erred (1) in permitting the plaintiff’s counsel against the defendant’s objection to interrogate the plaintiff as to the condition of the brakes on the caboose and other cars of the train; (2) in the oral charge of the court as set out in the above statement; (3) in refusing to give the affirmative charge for the defendant under the first count of the complaint; (4). in refusing to give the affirmative charge for the defendant under the third count of the complaint; (5) in refusing to give each of. the requested charges as to the effect of plaintiff’s contributory negligence. 1.

The evidence admitted as to the condition of the brakes upon the caboose and certain other cars was not admissible for the purpose of any recovery by reason of the bad condition of said cars and brakes, for no issue thereon was presented by the pleadings; but an issue was presented as to the ¡plaintiff’s negligence in mounting the car just ahead of the dead engine, an alleged dangerous place, for the purpose of setting the brake on that part of the train supposed to have been cut loose and' ready, if not already started, to move downgrade.

Therefore evidence of the condition of the brakes on the caboose and other cars accessible was admissible to show more or less necessity for the plaintiff to use the particular brake in order to hold the supposed detached. cars from running away. The evidence might have been limited, but counsel does not appear to have asked instructions to that effect. 2.

The judge charged the jury orally, and to this part of his charge, to wit, “if you believe that a prudent man, with the knowledge of the plaintiff, gained either directly or from having seen the defects in the engine in connection with all of the circumstances in this case, would have gone in between the car and the dead engine and undertaken to put up the brake, and he was injured thereby, then the plaintiff would be entitled to recover” — the plaintiff in error duly excepted.

This extract taken by itself and under the pleadings and issues of this case is not sound; for it would allow the plaintiff below to recover without showing negligence on the part of the railway company and would make the company an insurer (see Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; L. & N. R. R. Co. v. Stutts, 105 Ala. 368, 17 South. 29, 53 Am. St.

Rep. 127); but we cannot predicate reversible error upon it, because the charge is not given in full, and we are unable to say that, taken in connection with, and modified and explained by, the context, the excerpt is so misleading as to warrant a reversal. See 2 Mayfield’s Dig. (Alabama Courts) p. 561, and cases there cited.

This conclusion is strengthened by the presumption that the excerpt was given in connection with the plea of contributory negligence, and we may well further presume that the court satisfactorily charged the jury as to the necessity of establishing the defendant’s negligence as a preliminary to plaintiff’s recovery. And see Myers v. Sternheim, 97 Fed. 625-626, 38 C. C. A. 345; Blashfield Instructions to Juries, §,§ 374, 375. 3.

The affirmative charge on the first count was properly refused, because the issues on this count were the negligence vel non of the railway company through its engineer in causing, or allowing, the car on which the plaintiff was attempting to set the brake to move towards or against the disabled engine; and the contributory negligence vel non of the plaintiff in mounting the car next ahead of the disabled engine under the established facts in the case. In determining both issues the important question was whether at the time the plaintiff mounted the car the train was at a standstill or moving backwards.

If it was standing still, the plaintiff could have mounted the car next ahead of the disabled engine for the purpose of setting the brake, and not necessarily have negligence in so doing imputed to him. If the train, however, was moving backward when he mounted, negligence might well be imputed to him. If the train had stopped when the plaintiff mounted the car, and then without orders or notice and while the plaintiff was in the dangerous place the engineer started the train backwards, then negligence might well be imputed to the defendant.

The plaintiff testified: “We had to cut out a ear of merchandise that we had on our train and put it back on the ‘house track.’ I instructed my brakeman to put on the brakes when the train stopped, and then uncouple the cars. The train was backing down the track, and just as it stopped I saw the brakeman raise the cut-off lever. The road at that point in the direction in which the train was backing was downgrade, and a train was due from that direction. I heard the train blow. If the train was cut in two without the brake being applied,' there was danger that the rear of the train would run downgrade.

There was-nothing to keep the train from running off down the grade, and colliding with the train approaching in that direction after the train had been cut. I told the brakeman not to cut the car off until the train stopped. I gave the stop signal to the engineer, and the train came to a stop. There was no slack in the train that I could see. I don’t think the train would have come to a stop until the slack had run out. When I got up on the end car to set the brakes, the first part of the train crept back and caught me between the dead engine and the coal car.

The train had stopped still before I undertook to set the brakes.” Ray, the engineer, testified: “I heard no signal after the backdown signal was given until I heard the man holler. The train had been rolling down the main line all the while after the back-down signal had been given. It had not stopped. The first time it stopped was when I heard the holler. I could have seen any signals that were given and I had not seen any. I was looking in that direction.” Cunningham, the fireman, testified: “The train was moving backward at the time of the injury. I didn’t see or hear any signal.

All I heard was a man holler and the train then stopped. It had not stopped from the time it was moving backwards until the man hollered. It did not stop and start again almost immediately before he hollered.” Under the conflicting evidence and- on a vital point, the question was one for the jury, and an affirmative charge in favor of the defendant was not warranted. 4. In the third count the negligence charged was that the locomotive engine hauling the train was defective. On this point the plaintiff offered no evidence whatever.

The fireman, Cunningham, for the defendant, testified: “There was nothing wrong with the engine that I know of. It was in good working condition.” Ray, the engineer, testified: “The engine was all right and in good working condition, and had no defect.” And there was no evidence to the contrary. On this count the defendant asked the affirmative charge, and it was refused; and this, we think, constituted reversible error.

The counsel for the defendant in error contend that, though the court may have erred in refusing to give the affirmative charge on the third count, the same is not reversible error, because there was ample evidence to sustain the verdict on the first count and the verdict should be imputed to that count, and the case affirmed. This does not seem to be the practice in Alabama courts (Highland Ave. & Belt Railroad Co. v. Miller, 120 Ala. 535-546, 24 South. 955), nor is it warranted in this court in cases of this kind.

Besides, we may note that the evidence on the first count was not so clearly in favor of the plaintiff below, in fact, its weight was the other way, that we can saj’ that the damages awarded by the jury were based wholly or in part on the first count. As we reverse the judgment below, other assigned errors need not be considered. They may not be material or even arise on a new trial. The judgment of the Circuit Court is reversed, and the cause is remanded, with instructions to set aside the verdict of the jury and award a new trial.