The Montgomery advertiser., 1904-10-31
uANsAs CITY. MEMPHIS & BIR-
 MINGHAM RAILROAD CoMPA-

NY vs. THORNHILL
 Action by Employe against Railroad
 Coupany to Recover Damages fol
 Personai Injuries.--Appeal from the
 Law and Equity Court of Walker
 II Action against railroad company for personal injuries; sumciency oi complaint.-In an action by an em- ploye against a railroad company to recover damages for personal injuries where a count of the complaint ayers that at the time of the accident the plaintiff was in the service or the de- fandant as a section hand, and was under the control and management of . certain named person as foreman of inc section gang. and that while in charge of a lever car upon which the nlaintifr and the other section hands were riding, the said foreman negli- gently caused said car to be run to a certain point where they were met by a train on the defendants road going in she- opposite direction, and that the said lever car was stopped only few wards in front of said train, and that althourh said train was advancing, tbe said foreman "negligently and ordered said plaintiff to re- move said lever car from the track which order the plaintiff was bound to obey and did undertake to obey but without having time to understand and to realize the danger In obeying and in attempting to carry out said order and remove said lever car upon tbe track. he was struck by the en- zine" of said train. and sustained the Tn iuries complained of. which inju' ries were the proximate result of tho negligence of said foreman,--sucf count of the complaint is not subject to demurrer upon the grounds tha It's averments show that the plaintiff assumed the risk incident to the at tempted obedience of the foreman'' order, or that he was guilty Of negli gence contributing to his injury In at tempting to obey such order.
 g. Same; same.-In such a case. count of the complaint which aver that the plaintiffs injuries were caus ed by the negligence of said foreman ito whose orders plaintiff was boun' to conform and did conform. and hi said injuries resulted from his so con forming, to wit. that the said" fore man "negligently ordered plaintiff to remove the said hand car from thu track in front of rapidly approach ing train. and in attempting to do s' was struck and injured" is not sub
 
 it's averments show that plaintiff wal guilty of negligence which contributed to his injury.
 8. Same; sufficiency of plea con tributory negligence.--In such an ac ton where the defendant. by a specia plea, sets up the contributory negli gence of the plaintiff. and ayers there in that the plaintiff was guilty O negligence which proximately contrib uted to his injuries, in that when th' lever car and the locomotive of th' approaching train had come within | very short distance, the plaintiff ant the other persons on the lever ca stopped the same and got off of | safely, and after getting oh Of sai' car, the plaintiff returned to the leve car and attempted to pull 1t from th' track, knowing that the locomotiv' was rapidly approaehing--such pie; does not aver facts which show tha the plaintiff was necessarily guilty O negligence in his attempt to remove said hand car.
 {. Same; same.-In such n case special plea which ayers that at th' time the plaintiff undertook to remove the lever car from the track, he knew that the locomotive with the train at taehed was rapidly approaching ant was within so short distance tha by the exercise of reasonable care, th' said locomotive and train could no have been stopped before 1t struck said lever car. and that, therefore, tho plaintiff assumed the risk of under taking to remove said car, presents ( false issue, and is subject of demurrer
 5. Action against railroad company for personal injuries; when question of plaintiffs contributory negligence for the jurys determination.-In ar action against a railroad by one wh6 was at the time of the accident em ployed as a section hand, and who wal injured while going to his work on ( lever car, where there was evidence tending to show that while the plain tiff and the other section hands were on said car, going to their work, they discovered a train on the defendantI track going In the opposite direction that when within very short dis tance of said train the lever car wal stopped, and while the plaintiff wal in a safe position the foreman of thu section hands directed the plaintiff and the other section hands to re move said car, and that while trying to remove said car in obedience to th' orders of said foreman, as was theii duty, the plaintiff sustained the in juries complained of, the question al to whether or not the plaintiff wal guilty of negligence which contributed to his injuries, is one for the determi nation of the jury. and. therefore, thu general affirmative charge requested by the defendant was properly re fused.
 5. Same same. -5n such a case | cannot be said as a matter of law tha the failure of the plaintiff to keep ar eye on the, approaching train while h' was attempting to remove the level car In obedience to the foroman's or. der, was negligence; and charge which instructs the jury tat sucf failure on the part of plaintiff wat negligence, Is erroneous and properly refused.
 6. Action for personal injuries charge of court In reference to meas ure of damages-In an action by ar employe against a railroad company to recover damages for personal in juries, and instruction by the court tC jury, in substance. that as to whai should be the measure of damages, fl the plaintiff should recover, is for the jury to say, and that the court car assist by saying "that in fixing the amount of damages. If you find for tho plaintiff, you may take into consider ation the evidence as to the physical pain and injury. if any, to the health of the plaintiff. but in no event must the verdict exceed the amount claimed in the complaint" is erroneous ano should not be given Sharpe, J. dis senting.)
 Reversed and remanded.
 Opinion by Mcclellan, c. J.