Driver v. Southern Railway Co.

delivered the opinion of the court.

The record in this case is exceedingly confused; but, as we understand it, the injury to the appellant was caused by a kick*194ing switch. The learned counsel for appellant says this was not contested in the court below. If it was the result of a kicking switch, then, under Code 1906 § 4046, contributory negligence would be no defense since there was no such deliberate and reckless and voluntary exposure of the appellant to injury as would cut off his right to recover, under Railway Co. v. Jones, 73 Miss. 110, 19 South. 105, 55 Am. St. Rep. 488, and Dooley v. Railroad Co., 69 Miss. 648, 12 South. 956. The appellant was not a volunteer, in the sense contended for by the learned counsel for the appellee. It is true he stated that he Would go and make the coupling; but he was regularly in the employ of the railroad company, and under the orders of the engine foreman, who directed him, immediately upon the offer being made to do the work, to go and do it.

If, howéver, on another trial, the cloudy state of the case should be cleared up, and it shotdd be shown that the injury was not due to a kicking switch, a matter involved in much obscurity at present on this record, still the peremptory charge was improper, since it was given, manifestly, on the idea that rule ten of the railroad company’s rules cut off appellant’s right. We think this is an entire misconception of the true purpose and object of this rule. That rule, as set out in its entirety, is as follows: “In coupling or uncoupling cars or air hose, employees are positivley prohibited from going between the cars while either car is in motion. They aye also prohibited from going between the cars while an engine is attached to either for any other purpose than to adjust for a coupling the knuckle upon the car farthest from the engine, or to couple the air hose, and then only when the car’s are stationary and the knuckle can be adjusted in the ordinary way, by raising the lever with one hand and opening or closing the knuckle with the other. If anything connected with the coupling apparatus, cars, or track be defective or out of order, making the coupling or uncoupling more difficult or dangerous than ordinary, the employee must not attempt to make the coupling or uncoupling, *195or to remedy the defect or difficulty, but must immediately upon discovery report the same to the conductor or other superior officer in charge of the train. Conductors and yard foremen are required to see that trainmen and yardmen do not violate these instructions; and they shall require each brakeman on their train to read these instructions in their presence, and whenever these instructions are violated the conductor or yard foreman must be able to establish the fact that the brakeman in fault violated the instructions positively against his orders.”

The whole rule must be taken together. The engine here was not attached to the train. The train was being made up on a siding in several different sections, not coupled together. The rule provides -that employees must not make couplings by going in between ears when trains are in motion, and that, when the engine is attached to either of the sections to he coupled, employees must not go between the cars to adjust for a coupling. This train was not in motion when this coupling w'as attempted. The two cars, between which the coupling was attempted to be effected, were not connected with the cars which were attached to the engine, nor was the engine in motion at the time, nor is there any evidence in this record of a satisfactory character that the appellant knew of this rule ten at all, if it had been applicable; but it seems to us clear that it was not at all applicable under the facts of the case.

We say nothing more than this, and make no further comment on the case made by the testimony, since it must be tried -again; but, for the errors indicated, the judgment is reversed ,and the cause remanded.

Reversed.