¶1This is an action in damages for alleged personal injury.
¶2The amount sued for by plaintiff is $3,000 for the injury suffered, he alleged, by his son Henry Johnson, who was 18 years of age on the day of the accident.
¶3Plaintiff alleged that his son Henry Johnson, who will be mentioned as Henry hereafter, lost the thumb and the index finger of his left hand, was badly injured through negligence of defendant and those for whose fault and negligence defendant is answerable.
¶4Henry was the coupler and staker of cane cars of defendant.
¶5The complaint is that Louis Washington, who was in the employ of defendant, negligently, without warning or notice, while Henry was uncoupling one of the ears; which was stationary at the moment, put a string of cars in motion, and was the cause thereby of moving the cars, which jolted the standing car which Henry was uncoupling, his left hand was caught in the coupling of the car, and thereby caused the injury.
¶6The ears rest on wooden bodies; there is a crosspiece nailed to the body; below there is a plank giving shape to the front of the body, and it rests in front of each car; there is a buffer or round piece of timber dressed and reduced to a semicircular shape. An iron sheet encircles the front of the buffer, the upper front. There is, in consequence, more space below than on top. When the *511buffers ahead of these ears strike one another, the iron rims only on the buffer collide one against the other. There is more space below the iron rim and lower edge of the buffer.
¶7Just below the buffer a strip of iron is screwed down to the middle piece of timber which forms the length of the car body. There are three of these strips of wood. The iron bar connects with the buffer at the' end. On each of these is an iron link held by the iron bar, and a hook. In coupling cars one'hook is placed in the other, and the reverse is done when uncoupling the cars.
¶8It was in uncoupling the cars that the cars jolted the stationary ear and caused the casualty.
¶9Henry suffered and was an inmate of the Charity Hospital for several weeks. He avers that he has a maimed hand and is unable to do all the work to which he was accustomed.
¶10The defendant answered and pleaded the general issue and that plaintiff was guilty of contributory negligence.
¶11During the trial in the district court, defendant offered to prove that Louis Washington was a fellow servant of plaintiff, employed in the handling of empty cars from a place where there was a number of cars near to the derrick. Plaintiff objected on the ground that defendant had not alleged that Washington was a fellow servant. The court overruled the objection and admitted the testimony. The plaintiff reserved a bill of exception,, and the question is argued before this court.
¶12The facts recited in the pleadings are in the main, as before stated: The plaintiff in the afternoon in September, 1911, while at work, was trying to unloosen the coupling which did not readily respond to his attempt.
¶13It is reasonable to suppose that he held to the link coupling the cars, and that while holding them the car was pushed and collided with the stationary car which plaintiff was endeavoring to uncouple.
¶14There is a derrick used to transfer the cane from the carts to the cane car, to be hauled to the sugar house. It was hear this derrick that plaintiff was at work, and near the derrick he had worked during the grinding season of 1910 and 1911. There was a foreman in charge of the hands working at the derrick. He had been employed for a number of years as derrick foreman. At the moment of the accident this foreman had stepped aside and was not present at the derrick.
¶15This foreman instructed plaintiff at the time that he was put to work at the derrick, showed how to work, admonished him to be careful, and to be careful when cars were pulled up. Cars were pulled up by a mule, to the place at which they were pulled to be coupled or uncoupled.
¶16There were three empty cars by.the derrick. There had been loaded cars at that place but they had been hauled away.
¶17He had helped Louis Washington, who was generally in charge in the absence of the foreman, and when the foreman was present he worked at the derrick.
¶18They both worked under the foreman. Louis Washington attended to pulling the cars, and plaintiff coupled and uncoupled them. The cars that plaintiff was-uncoupling were about 100 feet away from those that Washington went back to get.
¶19At the time of the accident, when Washington was coupling cars, plaintiff was uncoupling the three first. 'He was between the second and third car.
¶20The plaintiff, testifying, said that he had no notice of approaching cars; he none the less went between the two cars. His hands were underneath the couples. He started uncoupling from the rear of the line of cars and came on to the front.
¶21I-Ie saw Washington walking back to the *513cars that were coupled and to drive his mules; they were hitched to these cars. He saw' the line of these cars as they started under the direction of Louis Washington. He drove to the ear that plaintiff was uncoupling and bumped against it.
¶22The coupling chains and hooks were taut. Plaintiff was shaking them in order to get them apart.
¶23Plaintiff says as a witness that a car bumping against another would have the effect of loosening the coupling and thereby rendering it easier to uncouple the car.
¶24In this instance it happened that plaintiff did not avail himself of the opportunity of taking out the hook; his hand was above at least a foot. It could not have been caught otherwise as the bumpers were at least half a foot above the couplers.
¶25Plaintiff did not seem to have a well-defined idea how the accident happened. The statement of plaintiff to his attorney as alleged was that his thumb and index finger were cut in the coupling of the cars.
¶26As a witness he said that they were caught in the bumper.
¶27If his hands were on the coupling, they were where it wa’s proper for ■ them to be. If they were on the iron of the bumper near the top of either bumper, they were not at the proper place. The evidence does not warrant the conclusion that they were anywhere else.
¶28One of the explanations given by the plaintiff is that it was necessary to raise his hands half a foot to loosen the couplings. The skeleton model in evidence does not suggest the necessity of raising one’s hand to that height.
¶29Louis Washington testified that he did not know that plaintiff was between the cars.
¶30He said:
“The cars were in a long string and I pulled up six cars and when they stopped I went back and got six more, but I did not know he was in between the first string of cars.
“Q. Henry Johnson heard you give instructions to start the cars?
“A. Yes, sir.”
¶31These were the alleged offending cars of which the witness had charge.
¶32Plaintiff, through learned counsel, seeks to make a point in regard to the instructions of the foreman not to go between the cars when running.
¶33The following is an excerpt from the testimony of Johnson:
“Q. You said that the instructions were not to couple or uncouple cars when they were moving?
“A. Yes, sir.
“Q. The cars that Johnson was uncoupling were not moving?
“A. No, sir; but I was pulling up the second lot of cars, and I did not know he was in between the first cars.”
¶34Under the instructions, it was proper to uncouple the cars after they had been stopped, but they were to be uncoupled from underneath the couplings and not from above, and the workman under general instructions should be alert when other ears are brought up to be coupled, ’ as they may jostle the standing car, a possibility against which it was part of his work to guard.
¶35Workmen who are warned against possible dangers ought to be careful. The evidence warrants the conclusion that plaintiff is without right to damages, and that by this conclusion there is no necessity of discussing at length the fellow-servant doctrine.
¶36The work of hauling cane done as usual, the testimony was admissible without that plea, and from it we glean that it is not possible to allow damages.
¶37For reasons stated, the judgment is affirmed at appellant’s costs.