CHAPTER III.

DECISIONS OF THE COURTS.

ALABAMA.

CODE OF 1886, VOL. I, PART III, SECTIONS 2590 To 2592.-Liability of employers for injuries of employees. (a)

An injury in the eye, received by a railroad employee, caused by a scale flying from the iron rail of the track, when struck by a hammer, in which hammer there was an alleged defect, by a coemployee who was attempting to drive an iron spike, is not an injury "caused by reason of any defect in the ways, works, machinery or plant connected with or used in the business of the master or employer." (Supreme Court, 1887, Georgia Pacific Railway Company v. Brooks, 84 Ala., 138.)

To authorize a recovery under this section [2590], it must appear that, at the time of the injury the employee was in the employment of the defendant, under a binding contract, express or implied, and that the injury was received while he was rendering the particular service required by that employment, or was obeying the orders of a superior to which he was bound to conform; and if at the time he was engaged, by way of accommodation, or self assumed, in a more hazardous service not pertaining to his particular employment, he has no cause of action. (Supreme Court, 1887, Georgia Pacific Railroad v. Propst, 85 Ala., 203.)

Contributory negligence on the part of the plaintiff himself is a complete defense to an action, founded on this statute, to recover damages on account of personal injuries received by him while in the defendant's service, and alleged to have been caused by the negligence of a fellow-workman in the same service; unless the evidence shows that his fellow-workman acted so recklessly or wantonly as to raise the imputation of a willful or intentional injury; and to have this effect there must be knowledge or consciousness on his part that injury would probably result from his conduct, or a failure to use every effort to avoid the accident when the peril became apparent. (Supreme Court, 1887, Wilson v. Louisville and Nashville Railroad Company, 85 Ala., 269; 1888, Columbus and Western Railroad Company v. Bradford, 86 Ala., 574; 1890, Anniston Pipe Works v. Dickey, 93 Ala., 418.)

Under statutory provisions, as at common law, a railroad company is required to use ordinary care and diligence to provide safe and suitable machinery, instrumentalities and appliances, for the use of its employees in their business, and to keep the same in good repair and free from dangerous defects, so as not to expose them to unnecessary peril—that is, to exercise such care and diligence as men of ordinary prudence would exercise under like circumstances; but it is not bound to adopt every new invention, though deemed by skillful and experienced persons to be less dangerous. (Supreme Court, 1887, Wilson v. Louisville and Nashville Railroad Company, 85 Ala., 269.)

In an action, brought under this statute [sections 2590 to 2592, inclusive], against a railroad company, to recover damages on account of injuries sustained by the plaintiff while in its employment as a brakeman, the complaint alleging that the injury was caused by the negligence of defendant in failing to provide good and safe brakes and appliances connected therewith, and by the defendant's negligently and carelessly omitting to keep its brakes on said train in good repair, and knowingly allowing the same to remain out of repair," it is not necessary for the plaintiff to prove knowledge by the defendant of the defects in the brakes and appliances. (Supreme Court, 1888, Louisville and Nashville Railroad Company v. Coulton, 86 Ala., 129.)

Under the provisions of this statute [sections 2590 to 2592, inclusive], a railroad company, like any other employer, is liable for an injury resulting from the negligence of a watchman or flagman to give proper signals; but, when the company

a See Law, page 75.

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(or employer) has established proper signals and rules regulating their use, an engineer or conductor is not authorized to rely on a signal which is not given in accordance with the rules; and if he does so rely on a signal so given, the company is not liable for any injury thereby resulting to him. (Supreme Court. 1888, Columbus and Western Railway Company v. Bridges, 86 Ala., 448.)

Under the provisions of this section [2590], the employer is not liable for injuries received by a person in his employment, caused by any defect in the condition of the ways, works, machinery or plant connected with or used in the business, unless such defect arose from the master's negligence, or had not been discovered or remedied by reason of his negligence, or the negligence of some other person in his employment who was charged with the duty of seeing that the machinery, etc., was in proper condition. (Supreme Court, 1889, Memphis and Charleston Railroad Company v. Askew, 90 Ala., 5.)

Where a recovery is sought, under this section [2590], by a servant injured on account of defective appliances, the burden of proving that the defect complained of arose from, or had not been discovered or remedied owing to the master's negligence, or that of his servant charged with such duty, is on the plaintiff, and no recovery can be had without such proof. (Supreme Court, 1890, Louisville and Nashville Railway Company v. Davis, 91 Ala., 487.)

A stipulation in a contract of employment for service on a railroad, that the compensation paid "shall cover all risks incurred, and liability to accident from any cause whatever, and if an employee is disabled by accident or other cause, the right to claim compensation for injuries will not be recognized," is in contravention of the provisions of this section [2590], opposed to public policy, and void, and does not secure to the railroad company exemption from statutory liability. (Supreme Court, 1890, Heissong v. Richmond and Danville Railway Company, 91 Ala., 514.)

Under section 2591, the measure of damages is limited to the pecuniary injury sustained by the persons to whose benefits the recovery inures; exemplary or vindictive damages can not be recovered, nor can anything be allowed on account of the pain or suffering of the deceased, the grief and distress of his family, or the loss of his society. A railroad company can not stipulate for immunity from liability for its own wrongful negligence, nor require an employee to assume the risks which by statute are devolved on itself. (Supreme Court, 1890, Louisville and Nashville Railway Company v. Orr, 91 Ala., 548.)

If the plaintiff, a switchman, gave proper signals to the fireman, whose duty it was to receive and transmit them to the engineer, but who failed to transmit them properly, and injury resulted to the plaintiff, the railroad company is, under the provisions of section 2590, liable for such negligence. A railroad company can not stipulate for immunity from liability for their own wrongful negligence; and a stipulation in a contract of employment, which the employee is required to sign on entering the service, that the regular compensation paid him "shall cover all risks incurred and liability to accident from any cause whatever while in the service of said company," contravenes the law itself, and is void. (Supreme Court, 1890, Richmond and Danville Railway Company v. Jones, 92 Ala., 218.)

Although switch engines are operated without pilots, or cowcatchers, in the yards of all well-regulated railroads, and the practice is justified by satisfactory reasons, this does not excuse or palliate the use of such engine without a pilot in drawing a freight train of loaded cars outside of the yard, or from one yard to another distant nearly three-fourths of a mile; nor does it relieve the railroad company from the imputation of negligence, at the suit under this statute of a brakeman, who was injured by the derailment of the cars caused by running over a cow on the track. (Supreme Court, 1890, Tennessee Coal, Iron and Railroad Company v. Kyle, 93 Ala., 1.)

The failure of the foreman in charge of a squad of laborers on a railroad to put out flags, or danger signals, as required by the known rules of the railroad company, to warn approaching trains of their presence on the track, is such negligence as renders the company liable, under subdivisions 2 and 5 of this section [2590], for personal injuries to one of the laborers, who, while returning in the evening to the station, on a hand car with the others under the charge of the foreman, seeing an inevitable collision with a train approaching on a curve, attempted to leap from the car, but was run over and killed. (Supreme Court, 1890, Richmond and Danville Railroad Company v. Hammond, 93 Ala., 181.)

In an action by the employee against the employer to recover damages for personal injuries, under this section [2590], if the complaint alleges that the injuries

were caused by a defect in the machinery used, it must also allege that such defect arose from the negligence of the employer, or of some person in the service who was intrusted by him with the duty of seeing that the machinery was in safe and proper condition, or had not been discovered or remedied on account of negligence on the part of one or the other of them; and an averment that they knew of the defect, or might have known by the exercise of reasonable diligence, without more, is not sufficient.

A count which alleges that plaintiff's injuries were caused by the negligence of the foreman who had superintendence and control of the engines, machinery, etc., and who knowingly allowed the engine which plaintiff was oiling and cleaning to be and remain in a defective condition, is sufficient under the second subdivision of the section [2590]. (Supreme Court, 1891, Seaboard Manufacturing Company v. Woodson, 94 Ala.,143.)

Section 2590 has no application to the known risks and dangers of the service against which human skill and caution can not provide, but renders the employee liable for injuries resulting from his own negligence, express or imputed, in the particular cases stated; nor does it relieve the employee from the duty of using ordinary care for his own protection in the service. (Supreme Court, 1891, Mobile and Ohio Railway Company v. George, 94 Ala., 199.)

A railroad company can not, by any rule adopted for the government of its employees, as by requiring them to inspect all machinery, etc., before using it, avoid or limit its statutory liability for negligence, or its duty to provide and maintain suitable and safe materials and appliances for the prosecution of its business; yet such rule being designed and calculated for the protection of the employees, imposes on them the duty of making an examination so far as their information and opportunities allow, consistently with their other duties and the attendant circumstances, and is to this extent, reasonable and proper. Such a rule does not make a conductor or brakeman "a person in the service of the master or employer intrusted with the duty of seeing that the ways, works, machinery or plant are in proper condition" within the meaning of the statute [section 2590], but imposes on him the duty of examining with reasonable care the machinery, etc., which he is himself using; and he is not relieved from the performance of this duty by the fact that another brakeman or conductor, examining the car a few days before, failed to discover and report a defect. (Supreme Court, 1891, Memphis and Charleston Railroad Company v. Graham, 94 Ala., 545.)

The supply pipe at a water tank, hanging over or near a railroad track is a part of its ways, works, machinery or plant, as those words are used in the statute [section 2590]; and if it hangs so near to the track that a brakeman, passing under it in the discharge of his duties, is struck and injured, or killed, not being guilty of contributory negligence, an action for damages lies against the railroad company. (Supreme Court, 1891, East Tennessee, Virginia and Georgia Railroad Company v. Thompson, 94 Ala., 636.)

A lever car, or car propelled by hand, as is in general use on railroads by workmen engaged in repairing and keeping up the track, is within the spirit and terms of subdivision 5 of this section [2590]. (Supreme Court, 1891, Kansas City, Memphis and Birmingham Railway Company v. Crocker, 95 Ala., 412.)

In an action to recover damages for the death of the plaintiff's intestate, who was an employee of the defendant, the complaint alleged that a plank, upon which the deceased was required to walk in the discharge of his duties as a watchman at defendant's works, was 8 inches broad, was laid upon rafters 3 feet apart and about 30 feet from the floor of the building, and that this was "an unsafe and dangerous appliance for the purpose." Held, that the complaint alleged a "defect in the condition of the ways connected with or used in the business of the master or employer," within the meaning of this section [2590]. (Supreme Court, 1892, United States Rolling Stock Company v. Wier, 96 Ala., 396.)

The liability of the employer under section 2590 does not spring from the contract of employment, the only office of which is to establish the relation of master and servant, and it is alone upon the incidents of that relation that the statute operates. Hence, a servant injured in another State by the negligence of a fellowservant, under such circumstances as would create no right of action against the master in that State, can not recover against the latter in Alabama, although the contract was entered into and the services partly performed in Alabama. (Supreme Court, 1892, Alabama Great Southern Railway Company v. Carroll, 97 Ala., 126.) In an action by an employee to recover damages for personal injuries under section 2590, when the undisputed evidence shows that the most careful inspection of

machinery demanded by law would not have discovered the defect in a brake rod, by which the employee was injured, and there being no proof that such defect was known, the employee is not entitled to recover for such injuries. (Supreme Court, 1892, Louisville and Nashville Railroad Company v. Campbell, 97 Ala., 147.)

A master is not an insurer that his appliances are absolutely free from defect, and the fact that the servant, a fireman, was injured while obeying the instructions of the engineer to throw open a switch similar to those in use on all wellregulated railroads, which act was not within the scope of his ordinary duties, does not change the rule that the employee, in an action for personal injuries under section 2590, must show that the injury complained of was caused by some defect which arose or had not been discovered or remedied owing to the negligence of the master or of some person intrusted by him with superintendence. (Supreme Court, 1892, Mary Lee Coal and Railway Company v. Chambliss, 97 Ala., 171.)

Where a father was employed to load defendant's cars at a specified price per car, and under directions of defendant's superintendent his minor son assisted him in the work, which was being done under the supervision of the superintendent, although the father received the pay for the work, and the son's name was not borne on the pay roll of the defendant, the son was a servant of the defendant within the meaning of this section [2590]. (Supreme Court, 1892, Tennessee Coal, Iron and Railroad Company v. Hayes, 97 Ala., 201.)

Where an action for damages is brought by an employee, under section 2590, for injuries received by the plaintiff, on account of defects in the brake of a railroad car, or its attached machinery, the burden is on the plaintiff to satisfy the jury of the existence of such defects at the time the train was made up, or at the station where it could have been inspected; that such defects were known to the railroad's employees, whose duty it was to look after them, or would have been discovered by the exercise of proper diligence; and, that such defects directly caused the injuries complained of. (Supreme Court, 1892, Louisville and Nashville Railroad Company v. Binion, 98 Ala., 570.)

The doctrine of volenti non fit injuria is not changed by the provisions of section 2590; and an employee, with knowledge of a defect in the ways, works or machinery, who continues in the service of his employer after the lapse of a reasonable time for its remedy, assumes the risk incident to such defect, and can not recover for injuries which he receives in consequence thereof. (Supreme Court, 1892, Birmingham Railway and Electric Company v. Allen, 99 Ala., 359.)

The superintendence contemplated by subdivision 2 of this section is not necessarily that of superintendence over the injured person, but if the negligence of the superintendent results in injury to any other servant of the common master, the latter is liable by the terms of the statute.

A movable object, such as a car on a side track, placed temporarily in dangerous proximity to a railroad track, is not a defect in "ways" of the company within the meaning of this section [2590]. (Supreme Court, 1893, Kansas City, Memphis and Birmingham Railroad Company v. Burton, 97 Ala., 240.)

Since the deceased's act in going under orders into the cylinder, where he was killed, was not the proximate cause of his death, but the supervening negligence of another, or unaccountable accident, there could be no recovery of damages under subsection 4 of section 2590, making the employer liable when the injury is caused by the act or omission of any servant in obedience to particular orders of a vice principal. An engineer actually operating engines with his own hands and with the aid of a helper, as directed by persons superior to him in the common employment, is not a person "who has any superintendence intrusted to him" so as to make the master responsible to a person other than the helper for his negligence "whilst in the exercise of such superintendence" under subsection 2 of section 2590. (Supreme Court, 1893, Dantzler v. De Bardeleben Coal and Iron Company, 14 Southern Reporter, 10.)

In an action against a municipal corporation for personal injuries sustained by a laborer employed by it, a complaint which alleges that defendant, through its agents and employees intrusted with the superintendence of the work, buried a dynamite cartridge at the place where plaintiff was set at work, without any notice or warning to him, and that it exploded while he was so at work, states a cause of action under subsection 2 of, section 2590 which renders an employer liable for an injury to his servant caused by the negligence of the person to whom the master has intrusted the superintendence of the work. A city which has placed a superintendent in charge of a gang of laborers can not be heard to deny the legality of his appointment, in an action by one of the laborers for injuries through the