Alabama G.S.R. Co. v. Carroll

Decision Date03 January 1898
Docket Number516.
Citation84 F. 772
PartiesALABAMA G. S. R. CO. v. CARROLL.
CourtU.S. Court of Appeals — Fifth Circuit

George Hoadley, Jr., A. G. Smith, and James Weatherby, for plaintiff in error.

Richard L. Brooks, and S.W. John, for defendant in error.

Before PARDEE, and McCORMICK, Circuit Judges, and MAXEY, District judge.

PARDEE Circuit Judge.

The defendant in error in this case was a brakeman on the railroad of plaintiff in error, working on the freight trains of said railroad between Birmingham, Ala., and Meridian Miss. The contract of employment was made in the state of Alabama, and he started to work between Birmingham, Ala., and Meridian, Miss. On the night of the 18th of June, 1890, he started out as a brakeman on the train from Birmingham, Ala to Meridian, Miss. He was asleep in the caboose of the train in Birmingham before he started, and was aroused a few minutes before the train was to start. He got up and went to the train, and just before it started, in company with the conductor and his fellow brakeman, he made a casual inspection of the train, but none of the three inspected the links coupling the cars before starting. The train stopped at Tannehill, Ala., to get water, and stayed there about five minutes; at Woodstock, Ala., to meet another train, and stayed there about five minutes; at Tuscaloosa, to put out a car, and stayed there about ten or fifteen minutes; at Carthage, Ala., and stayed there about five minutes; at Miller's Tank, Ala., and stayed there about five minutes at Eutaw, Ala., and stayed there several minutes; at Epp's Station, Ala., and stayed there several minutes, taking on coal, etc.; at York Station, Ala., and stayed there several minutes. At none of these stops did the defendant in error or his fellow employees make any examination of the links or couplings of the train. At Miller's the testimony showed that when the train stopped it was on a trestle, and they could not have made the examination. At all other places there was no physical reason why the examination could not have been made. Between Birmingham and Meridian there are several very heavy grades, one of them being at or near Wallace's Station, in the state of Mississippi. After the train had passed over the steep grade near Wallace's Station, and while it was on nearly level track, in the state of Mississippi, the train parted. At the time the train parted the defendant in error was on top of the cars, putting on the brakes. He had put on several, and was trotting on top of the cars, and was about to step from one car to another, when the train parted between the cars over which he was at the time passing, and he fell down in between the cars, and was run over by the rear section, and had one foot and a part of the other cut off.

The evidence shows that the two cars that separated were cars A.G.S., No. 9,341, and C. H. & D., No. 8,225. The A.G.S. car was a car of the Alabama Great Southern Railroad Company, and the C.H. & D. car was a foreign car, belonging to the Cincinnati, Hamilton & Dayton Railroad Company. The car C.H. & D. was received by the Alabama Southern Railroad Company at Chattanooga from some foreign road. At Chattanooga it was put in train, as a through car, and an A.G.S. car came from Chattanooga with it, a car being coupled between them. At Birmingham the intervening car was cut out, and the A.G.S. car and the C.H. & D. car were linked together, with the link that came with the C.H. & D. car from some foreign road, and this was the link that broke in two and caused the accident.

The train had 24 cars in it, and the link broke between the sixth and seventh car from the caboose, or hind car.

The evidence showed that the link belonged to the Kentucky Central Railroad; that the Alabama Great Southern Railroad Company had provided inspectors, whose duty it was to examine all trains going out, before they left, to see that all links, both foreign and domestic, about them were in proper order; that these inspectors were stationed at Chattanooga, Tenn., Attalla, Ala., Birmingham, Ala., Rising Fawn, Ga., Woodstock, Ala., and Tuscaloosa, Ala.; that the Kentucky Central Railroad Company, which owned the link, purchased their links from manufacturers of the best reputation, and that the Alabama Great Southern Railroad did the same thing. There was evidence tending to show that the link which broke, which showed also a bend, was bent cold, and that iron bent cold lost some of its strength. There was evidence tending to show that the link was bent before the accident. The iron of which the link was made was a good quality of iron. There was evidence tending to show that the link was cracked before it came in two, but the evidence did not show how long it had been cracked before it broke, if it was cracked at all. There was no evidence to show that the link was defective before it was put in the train to couple the cars, other than that it might have been bent cold. The train to which the accident happened was amply supplied by the railroad company with extra links of different kinds, to be used by the trainmen in replacing defective or broken links.

The following rules of the Alabama Great Southern Railroad Company were offered in evidence:

'Rule 126. All persons entering or remaining in the service of the company are warned that, in accepting or retaining employment, they must assume the ordinary risks attending it. Each employee is expected and required to look after and be responsible for his own safety, as well as o exercise the utmost caution to avoid injury to his fellows, especially in the switching of cars and in all movements of trains. Stepping on the front of approaching engines, jumping on or off trains or engines moving at a high rate of speed, getting between cars while in motion to uncouple them, and all similar imprudences, are dangerous and in violation of duty. Employees of every grade are warned to see for themselves that machinery or tools which they are expected to use are in proper condition for the service required, and, if not, to put them in proper condition or see that they are so put before using them. The company does not want or expect its employees to incur any risks whatever from which, by exercise of their own judgment and personal care, they can protect themselves but enjoins them to take time in all cases to do their duty in safety whether they may, at the time, be acting under orders of their superiors or otherwise.'
'Rule 242. They are charged with the management of the brakes, and the proper display and use of train signals. They must examine and know for themselves that the cars, brakes, ladders, running boards, steps, coupling gear, and all appliances, which they are to use, are in proper condition, and, if not, put them so, or report them to the proper parties, and have them put in order before using.'
'Rule 245. They must assist in loading and unloading freight, and aid the conductor in inspecting the cars, when the train stops for water or for other trains.'

It was shown that a copy of the printed rules of the company, from which the foregoing were extracted, was in the caboose of the train for the use of employees; and Carroll admitted that at a former time during his employment he had had a copy of the book in his possession, and had examined the same as far as the rules related to signals, but denied examining it further. Upon trial the jury rendered a verdict in favor of the plaintiff below, defendant in error here, in the sum of $15,000, upon which verdict the court gave judgment against the defendant below, the Alabama Great Southern Railroad Company, which company sued out this writ of error.

The record is voluminous. It contains 182 distinct assignments of error, appropriating 50 pages of the printed record, showing a very wide divergence of opinion on questions of pure law between the learned judge presiding in the circuit court and the learned counsel representing the railroad company; for certainly, counsel would not have taken the trouble to reserve exceptions in the trial court, and elaborate them into assignments of error in this court, unless they firmly believed in the correctness of their own opinions, and deemed it their duty to thus make up the record in order to protect the interests of their client. This court has had occasion to criticise the multiplication of exceptions and assignments of error, and we call the attention of counsel to what has been said on the subject. Howison v. Iron Co., 30 U.S.App. 473, 497, 17 C.C.A. 350, and 70 F. 683; Steiner's Ex'rs v. Eppinger, 23 U.S.App. 344, 9 C.C.A. 484, and 61 F. 253.

Without undertaking to deal with all the assignments of error, we will consider the important ones from our own standpoint.

It is complained that the trial court erred in sustaining the demurrer of the defendant in error to the rejoinder of the plaintiff in error which rejoinder was in reply to a replication of the fourth plea of the plain in error, setting up the statute of limitations of one year in the cause of action sued on. It appears that shortly after the accident in which defendant in error, Carroll, received his injuries, he instituted an action in the city court of Birmingham, Ala to recover damages therefor. Said action came on for trial, and, as appears from the opinion of the supreme court of Alabama, on substantially the same evidence as introduced in action, Carroll recovered a judgment for damages. On appeal to the supreme court of the state of Alabama, the judgment of the city court of Birmingham was reversed (11 So. 803), and the cause remanded for error in refusing to instruct the jury to find for the defendant; the court in a very able opinion, supported by reason and authority, holding as follows :...

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