Birmingham state herald., 1896-02-07
EMPLOYERS lIABILIlY ACT.
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 sidered. Hence he could not have been prejudiced by any ruling of the trial court as to the sufficiency of these counts.
 The remaining twenty-siX counts Of the complaint are drawn under the em- ployers liability act-code section 259O The rulings of the lower court on demur- rers struck down nineteen of these and plaintiff withdrew one, the twenty fourth, leaving six. Of these the nine teenth and twenty-first are drawn under clause 3 of said section of the code; the twenty-third presents case under clause 5; the twenty-sixth, and twenty seventh are under the first subdivision of said section, and count 2S IS under the second subdivision thereof. It is thus seen that the counts remaining in the case and upon which the trial was had presented every possible category Of fact which may be the basis of recovery un- der the statute; and an inspection or them will demonstrate that no one Of them sets forth any fact which Is not es- sential to recovery So that not only did the plaintiff have the right to fully pre- sent all his evidence under the counts to which demurrers were not sustained, ana in point of fact did hereunder fully de- velop his whole case. but that the ac- ton of the court in holding certain or the counts of the complaint insufficient did not put upon him the burden of prov ing any fact not essential to recovery. It can, therefore, be of no manner or consequence whether the eliminated counts were good or bad; the plaintin sustained no injury from their absence from the case at trial.
 The general issue was pleaded to all or the counts on which the case was tried. as we have seen. There were also nu- merous special pleas. Demurrers were interposed to many of these, sustained as to some and overruled as to others. Then plaintiff filed sundry replications to the special pleas. These were in turn de- murred to, and some were held bad and others sufficient. Allrulingsin these con nections against plaintiff are assigned as erroneous. The complaint throughout counted upon negligence simply; no count at any time before the court charged recklessness, wantonness or willfulness against the defendant or any of it's employees. One special defense, which we find to have been properly pre- scented to all the counts on which the trial was had, was that the plaintiff neg ]igently contributed to his own injury; and if it shall appear that this defense was proved, the rulings of the court on demurrers to certain of defendants pleas could not have involved injury to the plaintiff, and hence they need not, In that event. be reviewed.
 Plaintiff was a sWitchman in the yards of the defendant company. He received the injuries of which he complains while attempting to uncouple, or uncoupling, car from the front of an engine This engine was not a switch engine with step or narrow platform in front for switchmen to stand upon but was an ordinary road engine, with a pilot in front and draw bar or feet in length attached to the engine at the top of the pilot, and when not in use for coupling purposes, resting on the pilot with its end at the point thereof. This pilot is described by the witnesses as smooth one, i. e., with no fiange around its base, so that switchmen could not stand on it at all in coupling or uncoupling cars to or from it. When such engine is coupled to car by means of this bar, the point of the pilot Is immediately beneath the drawhead of the car, and its sides extend diagonally beyond the tracks, leaving on either side small triangular space be- tween the base of the pilot, which Is only or 6 inches above the roadbed, and the car in front and the rail to the right or left, as the case may be. It was into this space that the plaintiff went on the occasion of his injuries to detach a car which was thus coupled to the engine. The engine was moving at the time 'as fast as a man could walk,' and it was going forward pushing the car before it. While plaintiff was in there pulling out the coupling pin he, of course, had to keep pace with the car and engine, and in doing this his back was necessarily to- ward the engine As he thus moved and as he was in the act of laying hold of the, pin to withdraw it, the base beam of the
 
 between it and the roadbed and threw him down. so that the locomotive or some of its front wheels ran over and crushed both his legs.
 It was plaintiffs duty to uncouple the car from the engine The evidence shows that there were three possible ways for him to have performed this duty: One, the mode he adopted, and which resulted so diSaStrouSly to him, by going in between the engine and car r.,hi iIe. hot n standing on the outside of the rail and car and leaning and reaching over to pull the pin, supporting himself with the oth- CT hand against the. side of the car and walking along with the moving train, and the third by stopping the car and engine and then uncoupling them. There is evidence in the record tending to show that the second method was, under the circumstances, as dangerous as the first. But all the evidence and common knowl- edge concur that the third method was absolutely free from peril of any kind, and the evidence without conflict shows clearly that the first method, the one adopted by the plaintiff, involving ob- Vious and great danger to him, danger which is much greater, and manifestly so, than to go in between a car and a regular switch engine, or between two cars, while in motion to uncouple them. The plaintiff himself testified on this subject as follows: "The difference be- tween coupling and uncoupling with fiat car and with an engine with pilot, is that with a flat car you have a place to walk in between to uncouple it, and with a pilot you haven't near so much room as you have with flat car. It is more dangerous to uncouple from the draw-bar. With regular yard engine you stand on the step right in front of the engine, and lift up the link and un- couple it, and with the road engine you have to lift the draw bar and in un- coupling the yard engine from car you have a step to stand on to pull the pin and in uncouplng the road engine you have to go in front of the pilot to pull the pin. It Is more dangerous to go in front of the pilot. It is much more dangerous to uncouple a road engine with a pilot and bar from car than it is to uncouple regular yard engine from car In uncoupling yard engine from a car you have a platform in front of the engine to stand on, and in uncoupling a road engine you have to go in front of the pilot It is very dangerous to go in while the cars are in motion to