Birmingham state herald., 1896-02-07

ing such custom. Warden vs. L. & N. R. R. Go. 94 Ala. 227; Hill vs. B. U.a Ky. Co. 100 Ala. Al; Andrews vs. B. M. R. R. Go. 99 Ala. 438.
 Again it is contended that there was evidence tending to show that plaintiff was subject to the orders of a fellow switchman, Mat Eagan, at the time and place of the injury; that Eagan ordered him to go in between the moving engine and car, and that on this account his negligence is shorn of capacity to defeat a recovery, or that he was not negligent at all In the first place the complaint does not aver that Eagan ordered the plaintiff to go in between the engine and car while they were in motion. But aside from that, we have no hesitancy in de- claring that the peril of plaintiffs act was so obvious and so great and so inn minent that he was under no obligation on any phase of the evidence to under take it, and that the doing of it was negli gence per SC, regardless of whether Ea- gan had directed him to do it in that manner (which at most is only an infer ence from a tendency of the eyidence) and also regardless of supposed neces- sity to uncouple cars from the road en- zines in this way in order to keep up with the work of switching, of which there was something said in the testimony of witnesses. It may be true. as was said in M. & c. R. R. Co. .Ys,.Graham 94 Alai 553, that ."the-4ac of uncoupling cars while in motion by going between them does not necessarily constitute contribu- tory negligence under all circum- stances" but there can be no question, we think. that for swtchman to go into the small and irregular space which in tervenes between the base beam of pilot to an engine which is pushing car along as fast as man can walk and the car to which such engine is thus coupled, and to undertake to walk there while he un- 1fla tt..aA t,rrtKa h0 pilot immediately upon his heels, is neg ligence on his part in and of itself, and to be so declared by the court as matter of law, though he may have been ex- pressly ordered to do that thing in that particular way by one to all whose req sonable and proper orders he was bound to conform, and this, though the negli- gence of such superior in giving the or der is counted on, in a general way, as 1t is in this complaint, for recovery. And upon the same. principle, the supposed exigencies of the railroads business re- qurng that the work of switching should be done in this way because more expeditions, would not justify the doing of this obviously and greatly dangerous act. Kresenowski ys. N. P. Ky. Co. IS act. Kresenowski vs. No. Pac. Ky. Co. Is Fed. Rep. 299; Western Ky vs. Davis, IS So. Rep. 173; Warden vs L. & N. R. R. Co. 94 Ala. PIT, and case there cited.
 It is contended further, that conced- ing plaintiff was guilty of negligence, his right to recover should have been sub mitted to the jury, for that there was ev- idence tending to show that his injury was due to the recklessness, wantonness or willfulness of Lyons, the engineer. It will suffice to~say in this connection that the replications which. set up the wan- tonness,. willfulnessr and recklessness or the engineer were departures from the case made by the complaint, which counted on negligence alone, as we have seen, and that, of consequence, the court should have sustafneds defendants de- murrers tbereto which proceeded on this ground L., & N, R. R. Co. vs. Marker, the defendant cannot, be allowed to op- crate to its prejudice, in respect of the propriety of the courts action in giving the affirmative -ctarge1n its favor; but. the bad < replica uonss TT having been demurred to by the defendant, its right to an affirmative in structions. is to- Sbe determined without reference to- the issue made by them. We are not, however, to be un- derstood as holding that there is any evidence in the case tending to show more than simple negligence on the partl of the engineer, or on the part of ianys other employe of the defendant against whom charges of neglect are made in the complaint. That question we do not consider. a5 s-ous93s
 In follows that in our opinion, the cir cult court properly charged the jury to return a verdict for the defendant if they believed the evidence, and its judgment must be affirmed, r ..t...
 TO make crons pr0w keen the ma uIIre