Birmingham state herald., 1896-02-07

anu 'HdS d QTdW-DdT dl lue GUu anu ID much more difficult to handle in coupling and uncoupling, and besides this, man
 has to go in between the engine and car with this sort, and the consequence is
 that if man happens to stumble, or any
 thing of that sort, he would eall and be run over. Witness had come very near being hurt himself, that is, in coup ling. In uncoupling there is good deal of difference, because man can't go to uncouple an engine with a pilot very we'll unless it stops, without running some risk. The old pilot they used to have there is no foot board around them at all and no chance to get on them in any way. There is considerable differ ence in the danger of the use of the old fashioned ,slick-nosed engine and ;he switch engine in coupling. Wit ness considered that there was a great deal of difference in the danger Now, if an engine with a pilot is furnished, there was no custom ary method of using them with anything else unless they have got tosfixing pilot to the engine to stand on; there was for merly none. That is, there was no waX of getting on the engine to make the coupling, or anything of the kind. Some times flat cars are used, when you can get them. They are coupled to the en- zine and showed ahead of it, and the coupling is made with the other car with a fiat car. Using an engine is more dan gerous than using a flat car to couple with. A man has some chance of going between the cars. It is dangerous to at- tempt to uncouple an engine coupled with a drawbar to the car because you might fall. Proba bly, some time when you are uncoupling that way car would run over you. You might fall, of course. If you fell between two cars there would not be so much danger. The danger is obvious to go in and uncouple there and plain to be seen. It is so to attempt to tt.ln Y,erin lnd In car with a pilot and draw-bar, because there, is no chance to get to them. If they are stopped still there is no danger at all." And so Murdock, also witness for the plaintiff testified They gener- ally used engines with foot-board most ly at all the places witness ever worked
 Witness had used engines with pilots
 The foot-board engines were the usual engines used. There is as much differ
 ence in working with the two kinds of
 engines as there is between day and
 night. One you can jump on at the rate
 of ten miles an hour and the other you can't jump on until it stops.
 It is very dangerous to go in between
 an engine with a pilot and draw-bar coupled with another car. Witness did
 not know how it was to some people; he didn't mind it. It is dangerous. Witness
 didn't mind it, but there are different
 kinds of people. Witness never had get ting hurt on his mind, though he had
 been hurt twice. It is obviously danger ous to a man who looks on and sees it. Pat Markham, another witness for the plaintiff, testified that there was big difference in the danger in the use Of road engine instead of a yard engine in the yard work; that while it was easy enough to uncouple cars from road en-
 gine-you didn't have to hold the bar,
 and all you have to do is to put in the pin yet if moving along-if you are coup ling with the pilot following-if you don't
 look out 1t will catch your heel and you
 will get yourself cut up."
 Pat O'Donnell, also plaintiffs witness, and, like all the others, an experienced railroad man, testified that 1t was much more dangerous to go between road en- zine and a car to uncouple them, while the engine was pushing the car along,
 than between a switch engine and car for that purpose and under the same cir cumstances because very few road en- zines have place to stand on the pilot to uncouple, while on a switch engine you have got something to stand on, so that the engine cannot come along and catch you That it is a great deal easier to attach a flat car to the front or the en- zine and couple and uncouple other cars to and from that than to couple and un- couple to and from a road engine, and safer to uncouple with flat car In mo- tion," and In answer to question as to leaning over from the outside and un-
 
 Well, the pilot is coming right along after you, close to the ground, and of course if you happen to fall, if a person
 happens to fall or slip up, there is no chance to catch himself This testi-
 mony of these witnesses is not opposed by any other evidence in the case; in- deed there is no other on this subject, nor does the record afford ground Tor any adverse inference. It shows that the plaintiff did an obviously and greatly rrft tN,h hnt hn pilot and the box car to which it was coupled and attempting to walk along in this small space to draw the pin re- lease the draw-bar and then replace the pin, while the pilot was moving upon his heels as fast as man could walk. The evidence without conflict further shows that there was no necessity for the plain tiff to have done this. All thewitnesses examined upon the point. and there were
 several testify that, or to facts which show that the plaintiff had an option whether he would thus attempt to per form this service or would stop the en- zine and car before going between to un- couple them. It Is clearly shown that in movements of his engine at the time the engineer was subject to the orders and signals of the plaintiff and the latter had the right and power to require the former to bring the engine and car to a full stop before going In between them. Here then, was presented to plaintiff the choice of two ways of performing this duty-one entirely safe the other ob-
 viously and greatly dangerous. The law is we'll settled, and not questioned by ap pellant's counsel, that upon this state of case the injured party is guilty of negli- gence which will bar recovery by him, if he adopts the dangerous way, or even the more dangerous way, where
 both are more or less dangerous in dis
 charging the service required of him. M. & B. R. R. Go. vs Holborn S4 Ala,
 137; H. A. & B. R. R. Go. vs. Walters. l 91 Ala. 435: L. &. N. R. R. Go. vs. Orr, ib., 54S; Mobile Ohio R. R. Go. vs. George 94 Ala, 199
 But it is insisted that there are other facts in this case which entitle plaintiff to have the issues submitted to the jury.
 For instance, there was evidence tend ing to show that 1t was customary for switchmen to go in between a road en- zine and a car while in motion to un- couple them. But this fact if it were es- tablished would not have aided ths plain- tiff. The course pursued by him being | obviously very dangerous, he cannot jus | tify 1t or relieve himself of the conse-