2 Div. 725.
December 2, 1920.
Appeal from Circuit Court, Sumter County; R.I. Jones, Judge.
Armbrecht, Johnston Mitchell, of Mobile, for appellant.
Court erred in sustaining demurrers to the special pleas, as each show negligence of the plaintiff as a matter of law. 89 Ala. 240, 8 So. 243; 172 Ala. 560, 55 So. 218; 184 Mass. 368, 68 N.E. 680; 57 Minn. 237, 59 N.W. 302; 178 Mo. 508, 77 S.W. 515; 20 R.I. 338, 39 A. 186; 54 P. 136; 159 U.S. 245. The court should have directed a verdict for the defendant. 92 Ala. 262, 9 So. 230; 172 Ala. 26, 54 So. 613; 200 Ala. 504, 76 So. 446. Charge 4 should have been given. 89 Ala. 240, 8 So. 243. Court erred in giving charge C for plaintiff. 149 Ala. 561, 43 So. 7; 156 Ala. 269, 47 So. 84; 153 Ala. 178, 44 So. 1032; 169 Ala. 60, 53 So. 145; 158 Ala. 652, 47 So. 574; 174 Ala. 657, 56 So. 1013; 187 Ala. 103, 65 So. 923; 190 Ala. 324, 67 So. 246.
Frank S. White Sons, of Birmingham, Thomas F. Seale, of Livingston, and Ben F. Elmore, of Demopolis, for appellee.
The plaintiff was not a trespasser or a mere licensee, and therefore there was no error in sustaining demurrers to the pleas. 120 App. Div. 474, 104 N.Y. Supp. 910; 200 Ill. 122, 65 N.E. 656; 89 Ga. 277, 15 S.E. 365; 80 Iowa, 757, 45 N.W. 1065, 20 Am. St. Rep. 445; 158 Mass. 261, 33 N.E. 520; 33 Cyc. 764-767; 44 Minn. 61, 46 N.W. 210, 20 Am. St. Rep. 545; 124 Iowa, 238, 99 N.W. 735; 95 Minn. 49, 103 N.W. 714. The defendant was not entitled to the affirmative charge. 128 Ala. 113, 29 So. 187; 129 Ala. 523, 30 So. 623; 136 Ala. 191, 34 So. 194. Court correctly gave charge C for the plaintiff.
The suit for personal injury was tried on a count of simple negligence. Defendant's pleas, generally stated, were: (1) The general issue; (2) contributory negligence in going upon the track in front of the approaching train and in close proximity thereto, without stopping, looking, and listening; and (3) in remaining thereon in front of the approaching train.
Omitting formal allegations, the count was, in part, that —
"While the plaintiff was engaged in the discharge of his duties as a section hand of the Alabama Great Southern Railroad Company, cleaning up the track in the railroad yards near the depot at York, Sumter county, and while on the track of the last-named company, he was struck by a car, or the contents of a car, being operated by the defendant, with great force and violence, knocking him down" and causing the injuries catalogued; and plaintiff "avers that his said injuries were proximately caused by the negligence of defendant's servant or agent operating the train or locomotive engine to which said car was attached, and that said servant or agent of defendant was acting within the line and scope of his authority by the defendant."
The alleged conduct of plaintiff is assumed, as a matter of law, to be negligent, in the pleas to which demurrers were first sustained, ignoring the averment that plaintiff was at the place of his injury in the discharge of the duties of his employment. L. N. R. Co. v. Williams, 199 Ala. 453, 456, 74 So. 382; L. N. R. Co. v. Naugher, 203 Ala. 557, 84 So. 262, 265; B. R., L. P. Co. v. Williams, 158 Ala. 381, 48 So. 93.
The court sustained demurrers to pleas numbered 2, 4, 5, and 6, and overruled the same to plea numbered 3. Thereafter demurrers to pleas 2, 4, 5, and 6, as amended, were overruled. Pleas A, B, C, and D, contained substantially the averments of original pleas 2, 4, 5, and 6, with the further averment that the train was immediately approaching when plaintiff did what he is averred to have done, causing his injury, and to which pleas demurrers were sustained. We are of opinion that a less burden of proof was assumed or imposed by this ruling on pleas to which demurrers were overruled than would have been imposed under pleas to which demurrers were sustained.
It is harmless error to improperly sustain a demurrer to certain pleas where the defendant has the benefit of all matters set up therein under the remaining pleas. Jackson v. Vaughn, 86 So. 469; First Nat. Bank v. Chandler, 144 Ala. 286, 39 So. 822, 113 Am. St. Rep. 39; Penry v. Dozier, 161 Ala. 292, 310, 49 So. 909. Such is the case where a less degree of care is exacted of the plaintiff by the pleas under which the trial was had.
On the introduction of the evidence witness Harbin testified of the locus in quo of defendant's yards and track when plaintiff, engaged in the discharge of the duties of his employment, was injured by a "leading car" of a string of cars being "pushed by an engine," without a flagman stationed on or preceding the leading car causing the injury. Whereupon the following question was asked of the witness, "I will ask you to state whether or not it isn't usual to have some one on the leading car in that yard;" and he answered "Yes, sir." Again: "Where did the men usually ride? The way these cars were being pushed? Which place would he be, on this end or that end? Where did he usually stay?" To which answer was made, "Somewhere about the center of the car." Due objections were made and exceptions reserved to each question and answer. There was no reversible error committed in permitting such evidence, as it was a question for the jury whether the injury was the result of a breach of duty by the defendant in not having a flagman on the leading car or cars to keep a lookout for the laborer engaged in the discharge of his duty of maintaining and clearing the track in the yard, or whether the injury was due to the negligent discharge by the plaintiff of the duties of his employment, in the prosecution of the work of clearing the track in the yard.
The court erred in giving to the jury, at the request of the plaintiff, written charge C, which is as follows:
"I charge you that the burden is upon the defendant to prove its pleas, and if it fails to reasonably satisfy you of the truth of its pleas or one of them, then you cannot find that the plaintiff was guilty of contributory negligence."
The effect thereof would not be different if there was a comma after the words "of its pleas," as is so inserted in the copy of the charge on page 10 of the record. There were several pleas setting up contributory negligence under varying facts alleged therein. The instruction in question placed upon defendant the burden of proving each of its several pleas of contributory negligence that it might be relieved of liability, notwithstanding it was the law that defendant might have met the burden of proof assumed in such pleading by showing to the reasonable satisfaction of the jury that any one of its several pleas setting forth the contributory negligence of plaintiff was true. A party requesting in writing contradictory charges is bound by the prejudicial error they contain as modification of the oral charge, or as conflicting with other charges given. B. R., L. P. Co. v. Hunt, 200 Ala. 560, 76 So. 918.
Since the case will be retried, we may observe that the stop, look, and listen doctrine applies to strangers or to employees not engaged in the duties of their employment, and cannot apply to persons lawfully at work in repairing a railway track or a highway where it crosses a railway track. Such employees cannot be expected to pursue their labors and at the same time maintain a constant lookout for approaching trains. It was the duty of those in charge of such train, backing through the yard on the interchange track, to keep a lookout for laborers whose duties required them to be upon the track in constructing, repairing, or maintaining the same by clearing it of a pile of cinders discharged thereupon by an engine. L. N. R. Co. v. Williams, 199 Ala. 453, 456, 74 So. 382; L. N. R. Co. v. Naugher, 203 Ala. 557, 84 So. 262, 265; Thompson on Negligence, § 1839; Labatt on Master and Servant, § 332.
There was no error in refusing the affirmative charge to defendant, as a jury question was presented with respect to the negligence of defendant's servants or agents operating the train or locomotive pushing the car which inflicted plaintiff's injury.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and BROWN, JJ., concur.
SAYRE, SOMERVILLE, and GARDNER, JJ., dissent.