The Montgomery advertiser., 1906-11-30

n
 Heard before Hon. W. W. white- side.
 Afarmsd Opinion by Haraison, ].
 Weakley, c. J., Dowdell and benson JJ., concur.
 HUGcINs vs. SOUTHERN RAILWAY
 COMPANY.
 Action for Damag es tor Injury 70 En,
 ploye. (Decided June lS, 1908. Al
 So. Rep. S06l
 I. Master and servant; injury 70 ser- svant: action; plea; suA4Aclency--A plea In reply to an action Tor injuries re celved while coupling cars, alleging contributory negligence or part ot de- fendanf, m that oetendant made coh- tract not to couple the cars except with coupling suck, and m violation thereof attempted to coupie the cars by going in between them without coupling stick, was not subject co de- nlurrer for that 1t set torth contract, and alleged violation Lhereof, yet the facts set out did not snow violationi or tor that the pIea laiLea 10 alAese tnat the coupling GouId t@tVe been maoe
 wiLhouI golng between the cars; or for thai tne plea faiIed 10 snuw snat plaintiff knew that an engine was attached to e-ie cars and was approaching when he went in helw cen the cars to coupe them, or tor that IL IS Tn contraVenIIon of section l749. Code. lSyo, ala opposed
 to puoalc policy; or TOT that 1t showed on its luce that it was an arbitrary 1 rule, ana a tlaud for me purpose or escaping liaDInty. or Tor mat 1t IaIis to a4leSe Laets coastisutInS plaIntli1s ! neS44sence.
 2. Sa.ne.--A plea charging that pi4inLlf went in between cars to make d coupling when It was unnecessary, [ r f.fN hsssA Afstnn A fs4AF9
 was 1he proxisnate cause ot ms lnJurys I Is good.
 5. SaIile repi cat ion.--A replication to a pea tnat aIIeges that It as unne- cessafy tO go m .eeween the ears to
 uiahe the c0uHlnS, wnch asserts, as an answer lne.eso that tne cVuplins : c0uIu not nave Deen alaNe Without GO- l lls oetN cen the ea4s, and tnat plain | till Was oroered to inahe the coupling ! oy his superior enllloye was subject
 to demurrer Lof taI..nS 70 d4lc6e lndL aefendant's empioye "no oroered p.ai,i-
 Iln to make inc coupling hdd the rtgnt
 co abrogate the r04e prohADltlng eAl- i ployes nom going De.Ween Ga.s 60 make couplings; and for failure to! allege that the order was given by one who had authority to order yiola- l tion of the ruie.
 ] L Same: injuries to servant; jury ' question.--It was a question TOT the jury. under the evidence, whether there
 was negligence on part of defendant 8 superior enploye Tn failing to signal the engineer to stop or siacken speed Of cars and engine before striking de- | tached cars while plaintiff was be- l tween them endeavoring to make coup i ling.
 1 5. Same: evidence; cause O. injury, Ut was not error to permit witness to testify to the condition of certain gr% fO couplings, when 1t appeared by other competent evidence that the numbers of such cars correspond with the num- l bers of the two between which plain- tiff was injured | G. Same; contributory negligence. disobedience to orders Where the de- fense to an action for injury to an en- 1 ploye received while coupling cars. was contributory negligence; growing np out of disobedience to orders rela- ] tive to making couplings, 1t was com petent for deefndants superintendent to state what he told plaintiff about going in between cars on the day he l started to work and of his calling pIaintifPs attention to the rnles pro- lhlbting employees from going between
 the cars.
 | | Same; injury to servant; instrues tions; proximate cause----A charge as- sertins in effect that if the cars be- | tween which plaintiff was Injured were | in a defective condition. and defendant | knew Of the defects. and failed or re- I fused to put the cars in good condition, i plaintiff should recover, Is bad in fail- ing to hypothesize Q recovery upon the ,defects being the proximate cause of
 the injury.
 same% orders: effect--where the rules of the company prohibited brake men from going between cars to make
 eouplings an order from a sHperinten-. dent to a brakeman to couple certain, | cars was not impliedly an order to l go between them to execute the order g. Same: injury to servant; contrib- utory negligence; proximate cause--H the brakeman was negligent In going ' between the cars while they were In l motion he cannot recover. although the l engineer was negligent in backing the cars at an unusual or excessive speed. 10. Same: instructions; wanton neg l ligenee of ow-servant-Under the facts of this case a charge asserting that unless the engineer was guilty of 1 willful or .wanton neriigence inN back l ing his engine and ears at great and dangerous rate of speed. and was con- scious of the fact at the time that his l acts would likely result in Injury to plaintiff, plaintiff could not recover on ! account of the, negligence of the en- l Elneer was properly given.
 1 II Same; rules O. employment; req son onableness.-A rule prohi iting em-
 pIoyes from going hetwe n moving ] cars to couple or uncouple them while
 in motion Is reasonable rule. I 12 Same contributory negligence;
 operation of railroad.--A brakeman
 was guilty of contributory negligence in going between moving cars for e purpose of making a coupling, if the coupling could have been made with
 out going between them, where the
 rule of the company prohibited the going between moving cavs for the purpose of makir g coupling.
 13. Same; negligence of fellow-ser- want; acts of negligencei proximate cause Where a brakeman, while
 standing outside of the track, signaled the engineer to pack his train. and @
 engineer did so Tn the approved way, and before the backing train reached
 the cars to be coupled the brakeman
 went in between the cars; and the en-
 gineer. as soon as he discovered the
 fact that ..ie brakeman was in between \ the cars, used ever means to stop his
 train but was unable to do so. and in- jury resu % to the brakeman, he could
 not recover.
 IA Same; proximate cause, Where the engineer was taking his signals from the brakeman and did not see
 any signals given by the superinten-
 dent and the brakeman was caught and iniure~, he cannot recover for any
 negligence of the superintendent
 IS. Same: rules; customary violation Unless It was known to the railroad
 and acQu' 'esced in by it, or had pre-
 xyat1ad for so lon gsa tfrra that th,, road