lant, plaintiff in the court below, which de- | murrer was sustained by the court, and judgment was entered by the latter for the defendant. This action of the trial court is assigned here as error. Plaintiff was an employé of the defendant, mining and loading coal in defendant's mine No. 5, by contract. After the coal was loaded in cars in the mine, it was the duty of the defendant to haul the cars out of the mine to the tipple, and it was also the duty of defendant to place empty cars in place to be loaded by plaintiff. The motorman operating the electric locomotive-called a motor-and a brakeman engaged in handling such empty and loaded cars, were employed and paid by the defendant. There were eight rooms in which coal was being mined by plaintiff at the time of the accident, numbered 1, 2, 3, 4, 5, 6, 7 and 8, 50 feet from one room neck to another, on the right-hand side of the entry going into the mine past these rooms. This entry had been driven about 35 feet beyond the last room, No. 8. Along this entry there was a track which extended to within about 12 feet of the face of the coal in the "heading" or end of this entry, and tracks switched off to the right, as the mine was entered, from this entry track, at the neck or entrance of, and passed into each of said rooms. The current of electricity moving the motor reached it by means of a trolley pole, extending above the motor, similar to such pole of a street car, such pole having a wheel on the end of it running along in contact with a trolley wire suspended over all of said tracks, except that the trolley wire hung over said entry track "ended at No. 7 room" (page 67, Record), and in order for the motor to go into room 8, or beyond the entrance to room 7, it was, according to the testimony of the plaintiff, "supposed to stop, take the hook off the reel, and hang it on the trolley wire and go to No. 8," or beyond No. 8 on the track extending near the "heading." "He [the motorman] was supposed to stop at No. 7, if he was going ahead, and hang the cable. This cable pulled out as he run. *" Pages 67-68, Record. The accident happened during work in the mine on a night shift between 3 and 4 o'clock, The plaintiff testified on what we conceive to be the turning point of this case as follows: "Q. Who was the motorman at the time you were injured? "A. Hugh Stacy. "Q. Was he white or colored? "A. Colored. "Q. How long had you been working in No. 5 mine at the time you were injured? "A. Nearly four months. "Q. How long had Hugh Stacy, the motorman, been working in No. 5 mine at the time of the injury? "A. I guess a couple of months. "Q. I will ask you to go ahead and state to the court and jury, in your own way, how this injury happened, and the facts and circumstances leading up to it? "A. Well, we went out that night to work-you mean commencing that night? "Q. That night; yes. motor. "A. Well, the evening before I went up that night, I asked Mr. Rutters-had asked him three or four times-about putting on another motorman, and he promised he would; asked me who I wanted, and I told him Mr. Hurst. Before that he told me he would put Mr. Hurst on the motor, and I done so, and went down under He told me to put Mr. Hurst on the the hill after the cars, and got down at the bottom. The night foreman was there. He says, 'What are you doing with another motorman on?' and I says, 'Mr. Rutters told me to put Mr. Hurst on the motor; and he says, Hugh, will you brake for him?' and he says, No; I will quit. "(Objected to.) * "A. He put Hugh back on the motor and could not get anybody to brake for him. He asked me if I would brake for him, and I told him I did not want to brake for Hugh, and he wanted to know why, and I told him he run too fast and I had not broke to say any at all, and He got Hugh back in the motor, and said it was afraid I might get caught with the motor. would be all right. I went back up to see Will Andrews to see if he would brake"(Objected to.) "Q. Did Will Andrews brake any that night? "A. Yes; broke about an hour. "Q. Did he quit? "A. Yes, sir. "Q. Who took his place? "A. George McQueen. "Q. How long did he brake? "A. Very near to 12 o'clock. "Q. Did he quit? "A. Yes, sir. "Q. Who took his place? "A. I did, until I got hurt. Walter Hanks, the night bank boss, about brak"Q. Did you have any conversation with ing? "A. Yes, sir. "Q. Go ahead and tell what he said. "A. Well, George McQueen come off braking, and I got on the motor and went to the outside to see if they could put another brakeman on there. He said he didn't have another brakeman, and I will have to shut down to-night, can't get nobody to brake unless you will brake.' "Q. What did you say? "A. I told him I would not brake. "Q. Why? "A. Because I was afraid he might hurt me; he ran too fast. "Q. What else was said at the time by Hanks? "A. He says, 'I will have Hugh run slow if you will brake.' He looked up and says, 'Hugh, you will run slow, so there will be no danger?" and he said he would. I went on on them terms and took up some cars and brought loads outside, and went back and had one extra took out beyond No. 8, and placed an empty in there, and come back for the empties; got six more empties and went back to the top of the hill. Men had all come out below down there to get some cars, all on the outside but a couple of loaders. We started back to pick up one out of No. 7, and then back down to No. 8, and on the way he started to speed, and further he went the faster he got, and the light on my cap blowed back; wouldn't give no light in front at all. When it passed No. 7 room I could not tell what it was, running so fast, run into this load, and knocked it around into the heading, and mashed my foot plumb flat. "Q. I will ask you to take off your shoe and sock and show your foot to the jury? "A. (Witness done so. Note: Right foot on the inside.) "Q. Have you the same use of that foot now as you did before the injury? "A. No, sir. "Q. You said something about speaking to the day bank boss, Reece Rutter, about Hugh Stacy, the motorman. I will ask you to tell the jury how many times you spoke to the day bank boss and night bank boss about the kind of motorman Stacy was. "A. I went to Mr. Hanks the evening before the evening I got hurt, and he said he had no right to change the motorman. "Q. You went to Mr. Hanks, and he said he had no right to change the motorman? "A. Yes, sir. "Q. Did he direct you to see any one else? "A. He said Mr. Rutters was the one who hired him. "Q. What did you tell Hanks? "A. I told him I had a man I could put on the motor. "Q. Why did you want to put a man on the motor? "A. So that I could keep a brakeman and have more success getting out coal. "Q. Why were you not able to keep brakemen? "A. They were all afraid to brake for him the way he run, such reckless speed. "Q. What did you tell Hanks about the motorman at the time you asked for another man? "A. I told him I could not keep brakemen. "Q. Did you tell him why you could not keep brakemen? "A. Yes, sir. "Q. What? "A. They were all afraid to brake under him. "Q. Why were they afraid to brake under him? "A. He was reckless, would not wait for a signal; just run the motor right on. "Q. Did you mention anything to Hanks about his fast running and speed? "A. I told him I could not keep brakemen. "Q. Did you say anything about his speed? "A. Yes; I told him he run so fast the brakemen were afraid to brake for him. "Q. Did you tell Reece Rutter about the way Stacy was running? "Q. Yes. "Q. Give your best idea? "A. I would guess, if I was making an estimation of it, 10 or 12 brakemen. "Q. Why did they quit, if you know? "A. I don't know why they all quit. "Q. Why did the ones quit that you know about? "A. Didn't want to get hurt. "Q. Do you know the general reputation of Hugh Stacy among the miners and other employés there for reckless running? "(Objected to.) "The Court: You may ask him if he had a reputation first. "Q. State whether or not Hugh Stacy, the motorman, had a reputation among the miners and other employés of the Clinchfield Coal Corporation for reckless running and speeding. "(Objected to, because leading.) "Q. State whether Hugh Stacy, this motorman, had a reputation among the employés there at Dante as motorman. "A. They called him 'the wild motorman.' "Q. They called him the wild motorman? "A. Yes, sir. "Q. What do you mean by they? "A. Well, that was "Q. Who called him the wild motorman? "A. The loaders and other motormen. "Q. Did you ever hear the brakemen speak of him? "A. No, sir; I don't know that I could say more than that I have told you about his reckless running. "Q. At the time of this injury did the motor have any lights on it? "A. No, sir. "Q. State whether or not you and the motorman had any lights on your caps at the time of the injury. "A. Yes, sir. "Q. Would these cap lights give any light when the motor was running at an excessive rate of speed? "A. Yes, sir. "Q. How much? "A. You could see 15 or 20 feet ahead all right. "Q. How far could you ordinarily see when You were not running at such a rapid speed? "A. See from one room neck to another, 50 feet. "Q. What effect, if any, did the speed have on the lights from your caps? "A. Made a suppression in the air, turned the light back against the lamp and cap. Cross-examination: * Q. The main line then was necessarily clear then before that? "A. Until we left the car there; that was as far as the entry went; that was the end of the entry. "Q. Who was acting as brakeman when the car was set out there? "A. I was. "Q. You were? "A. Yes, sir. "Q. Who uncoupled the car? "A. I did. "Q. Then you left the car on the main line? "A. Yes, sir. "Q. How long before this accident occurred did you leave the car on the main line? "A. It had been, I expect, 30 minutes. "Q. You knew the car was on the main line? "A. Yes, sir. "Q. What was the motorman doing at the time this motor ran into the car? "A. He was running the motor. "Q. Did you see what he was doing? "A. I was on the front end of the motor and he was on the hind end. * Q. You stated that you bunched the cars and when you got a load you carried it Where did you carry it? out. "A. Got it from the room and set them on the entry until we got a trip made up, would get the first room and set them back and pull up and get another, and get a trip made up and carry them out to the outside. "Q. Where was the trip made up to be carried to? "A. From eight room to No. 1. "Q. You say until you got a trip made upWhere did you intend to carry the trip after you got it made up? it. "A. Outside to the side track. "Q. What track? "A. Side track; back switch, you might call * * "Q. Well, go ahead and tell the court how much experience you have had as motorman or brakeman, either one. "A. I have been around where motors have been run for the most of my work in the mines; I have broke a little off and on and run a little bit and placed machines. So far as working regular on a motor, I never worked regular on a motor. "Q. How long have you worked in mines where they operated motors? "A. Well, off and on ever since I have been mining, about eight years. "Q. To what extent did you ever work as brakeman or motorman? "A. Just a shift now and then. "Q. Occasionally? "A. Occasionally; whenever it come down had nobody else, I just broke for the accommodation of the work. "Q. Now, I will ask you again, do you know, and if you don't know, you will say so, where the usual and customary place is for brakemen to ride when they are braking on motor trips in mines? "A. Yes, sir. "Q. I will ask you to tell the jury where that usual and customary place is, on which end of the motor with reference to the place that you were riding on the night that you were injured? "A. When you are going ahead, the usual place is for him to ride at the front end of the motor. "Q. On the front end. Where you were riding that night? "A. On the front end of the motor. "Q. Tell the jury what, if any, difference there was between the position you occupied that night and the position usually occupied by brakemen riding on motors when they were doing the same kind of work you were doing that night; was there any difference in your position and theirs? "Q. Tell the jury if you knew when the trip which you were hurt on passed No. 7 room, and if you didn't know when it passed there, why you didn't know it. "A. Well, I didn't know when it passed the room because he run so fast I could not count the rooms as he passed them. "Q. Why didn't you get out of the way of the stationary car in the heading before he hit that and it hit your foot? "A. I thought he would stop when he run up to No. 7 room; I was looking for him to stop. "Q. If I understand you, you mean to say that you did not know you had passed No. 7 room? "A. No, sir; I did not know it." Cross-examination: * Q. Did you say you were hired that night to work as brakeman? "A. Hired? "Q. Yes; were you hired? "A. Yes, sir. "Q. You didn't occupy that position because it was usual and customary? "A. What do you mean by that? "Q. What I mean to ask you is if you used your own knowledge as to the place to occupy, or did you ask somebody? "A. I knew where the brakemen- If you would see a wagon drive for eight years, would get in the seat to ride or stand on the wheel? You would know, wouldn't you? "Q. That was the reason you took that position? "A. Yes, sir; that was where the other brakemen all rode. "Q. You didn't have any direction to get up there that night, did you? "A. That is where they rode. I "Q. You have said that several times. I would like for you to answer my question. asked you if you took that position on the motor that you did take that night because it was usual and customary? "Mr. Werth: He said he did a dozen times. "Mr. Robertson: Let him say it again. "A. That is what I done. He told me to go on and brake, and I went as brakeman. "Q. So you used your own judgment because it was usual and customary? Answer 'Yes' or 'No.' "A. I rode the front end of the motor; yes. "Mr. Werth: There is nothing alleged in the declaration and nothing said by counsel that he was told to get there. We don't claim that Hanks told him to get there. "A. The boss never told me where to get. * * "Q. You didn't pay much attention to where you were going? "A. He was supposed to stop; he run by a nip with juice on it; was not supposed to run on past it. "Q. Was he supposed to know any better than you where to stop? "A. He was running the motor. "Q. If you had wanted to have gone in No. 6 room, how would you have notified the motorman? "A. He would have stopped before he got to the switch at No. 6. "Q. Suppose he did not know it? * Q. You were asked something about volunteering as brakeman that night? Have you got a ticket showing that the company paid you for that night's work as brakeman? "A. Yes, sir. "Q. And they issued you a ticket and paid you that night as a brakeman? "A. Yes, sir." "A. Well, the rule applied to all the five openings on that side, though I had it all. "Q. And No. 5 was one of them? "A. Yes, sir. "Q. What was that general rule and custom? "Mr. Werth: We object. He said they had a rule of that sort. "Mr. Robertson: We have printed rules for the government of the mine, and this rule is not inconsistent to our printed rules. "The Court: If you show a rule in No. 5, and that the plaintiff had knowledge of it, that would obviate the necessity of having printed rules or showing the printed rules. If you show it was a rule, and he knew it was the rule, notwithstanding they might not have printed or published it, you may do that, because the purwhat the rule is. Cross-examination: " rules any rule telling how trips should be Q. Was there among the printed up? "A. I don't remember. There was some testimony of other wit-pose of the publication is to let the parties know nesses for plaintiff corroborative of his testimony and a good deal of testimony for defendant in conflict with plaintiff's testimony, especially as to the competency of the motor-made man, Stacy; the defendant's exercise of reasonable care to ascertain his competency; its reasonable belief in his competency and denial of any notice from plaintiff or otherwise of the motorman's carelessness or recklessness; as to customary place for brakeman to ride; and other contradictory testimony. And Hanks testified for defendant as follows: "A. And when I found Mr. Riddley at the drift mouth or mouth of the mine, I asked him how the accident occurred, and he told me he left a car on the haulway or on the entry that he failed to couple on the other trip, and that they run into it, and he had cut his foot off. I believe he told me, if I am not mistaken. "Q. If there was any, do you know anything about it? Did you ever read any such rule? "A. I could not say at present time. "Q. If you did you don't remember about it? "A. I don't remember exactly what I did read about it. They had the printed rules up there, but I don't remember what I read. "Q. Was there any particular custom with refence to how the trips should be made up when the trips consisted of the cars coming out of the eight rooms that Mr. Riddley was working in? A. I don't know that they had any regular system in making up trips. "Q. That is what I am asking you about? "A. Sometimes haul three cars, and sometimes five. "Q. So that this accident happened by Ridd-in chief that there was a rule about making up "Q. Yes. What did you mean when you said ley's running into a car that was on the track? * * * "A. I don't remember all he said. trips not to leave cars on the track and go back and get another car, etc., like the motorman did "Q. I understood you to say he told you that in this case? he had left the car on the track? "A. Yes, sir; on the other trip. "Q. I want to ask you if it's proper and customary for brakemen to leave a car on a track in a place of that kind in the mine? * "A. I could not say exactly what was the rule there at that mine. Part of the time we would haul them from the mines to a yard and part of the time put them on a back switch. It is the usual rule "Mr. Werth: I understood you to say that you did not know at that time? "A. (continued). We hauled the coal out of the mine, out of No. 5, and would back switch what it would hold; put it on the back switch, and what it would not hold we took it to the yard; that is, when we got the trip. Of course, they had places to make up trips. "Q. What is the general custom and rule as to brakemen leaving loaded cars on the track? "(Objected to. Objection overruled. Exception by plaintiff.) "A. Well, the usual, customary, and general rule is ✶ "The Court: I don't think it necessary to go into what the general rule is. Plaintiff says he put that car there himself. "Mr. Fulton: We are trying to show that it was not proper to put that car there and leave it there, and to show that there was no rule or custom to put it there. "The Court: Q. Mr. Hanks, do you know what the general custom was at No. 5 mine as to brakemen leaving loaded cars on the track there? "(Objected to. Objection overruled. Excep "A. I don't understand what you mean. "Q. Didn't you say to Mr. Robertson that there was a rule of that kind or a custom of that kind? "Mr. Burns: He did not say anything about that. "Mr. Werth: Hasn't he got sense enough to say so if he didn't, without answering for him? "Q. What did you say on that subject? 1 understood you to say, and if I misunderstood you I want you to correct me-I understood you to say it was against the rule to bring a car out and stand it on the main line and go after another; it was against the custom to do it. You didn't say that, or did you say it? "A. I don't understand your question yet. "Q. You don't? "A. No, sir; I don't. Make it plainer. "Q. If I understand you, now, you admit to the jury that there is no rule which forbids the motorman to make up a trip, go and get cars out of a room, and stand it on the track and go and get another car? "A. You mean printed rule? "Q. Of course; or the rule and custom. Ι want to get at the same thing you got at when you were testifying in chief for these gentlemen over here. "A. It was against orders to set cars on the main line in making up trips, unless they left a flag up. Q. What did you mean when you said there was no system about it in this mine where this man was working? "A. Had the same system in making up trips, but in bringing them to the outside didn't have "Q. What did those orders you referred to say? "A. I could not say. It has been 12 months since I saw and read it. I suppose they have got them. "Q. You testified about that awhile ago? "A. If I understood the question, I testified awhile ago, only asked me what the rules and regulations were with the foremen. "Q. The foremen did not make up the trips, did they? "A. They gave orders, didn't they? "Q. What did you understand them to refer to; did they have reference to these eight rooms that Mr. Riddley was working in or not? "A. I had reference to No. 3 mine. "Q. This is No. 5 mine? "A. Supposed to have been worked under the same rules. "Q. Did this man, Hugh Stacy, violate any rule when he set the car back on the main track and went after another; did he violate any rule or custom or order? "A. I suppose it was the brakeman's duty; he should have coupled the car. "Q. I am not asking you what you suppose. What order, rule, or custom was violated when they set the car back on the track and went after another car? "A. It was the duty of the brakeman to couple it. "Q. Read the question. "A. I don't know that he went after another car at that time. I don't know that he went after another car. "Q. Read the question again. "A. I answered that question, didn't I? "Q. If you had and given an answer I understood, I would not have asked it again. If you have answered it, I will ask you to answer it again. "A. I don't know that Hugh Stacy went after another car when he set it back there. "Q. You made that answer awhile ago. The lawyers, jury, and everybody else heard you say you were not there, and know that you don't know what they done, and I am not asking you what they done that night. I am asking you what rule, custom, or order-catch this nowdid Hugh Stacy or Henry Riddley yiolate when they set that car on the main line and left it there and went back after another car? "(Objected to. No evidence here they went back after another car.) "The Court: Ask him what rule was violated when they set the car on the track there. "Mr. Werth: Assuming that they did go back after another car. "Mr. Burns: The evidence is they took the trip and went on. "Q. Read the question. "A. I don't know that they went back after another car. "Q. Mr. Hanks, it don't seem to me to be possible for you to misunderstand that question. I am not asking you what these men did or did not do. Assuming that they did go back after another car. "A. I don't know. "Q. In answering that question, you assume that they did this, will you? You did that when you testified for them.. Assume that they left the car on the main line and went back to get another car. Now, if they did that, what rule, custom, or order did they violate when they did it? "A. It was against orders. "Q. What orders? "A. Orders of the foreman. "Q. Was it against the printed rule of the company? "A. I can't say. I don't remember exactly the words of the printed rules, because it has been quite awhile since I read them. "A. Yes, sir. "Q. How many would it bring in there? "A. Sometimes take in 5 or 6 or 7. "Q. They got all of these cars out of the rooms, didn't they? "A. Supposed to get them out of the working places. "Q. How far had the rooms been driven back from the entry? "A. Different distances; some 50 feet, some 60 feet, and some not so far, and some maybe further. "Q. In order to carry as high as 12 cars to the outside from the working places, they all had to be brought out, some from one room and some from other rooms? "A. Yes, sir. "Q. Where would they leave the cars? "A. Sometimes make a trip down in the room. "Q. Wouldn't get 12 cars out of one room? "A. No; take the car out and go on to another and back the trip in there. "Q. Go into a room and get the first car; then where would they pull it to? "A. To the haulway. "Q. Where would they leave it standing, on the ground or on the track? "A. Leave it on the track. "Q. Main track? "A. They seemed to have had that one on the main track. "Q. I am talking about the usual way of making up trips. "A. Hold on to the car. "Q. If they held to the car, how could they put an empty back up in that room? "A. They could switch the loaded car and shift |