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

• Decision Date: 22 November 1892
• Citation: 11 So. 803,97 Ala. 126
• Parties: ALABAMA G. S. R. CO. v. CARROLL.
• Court: Alabama Supreme Court

11 So. 803

97 Ala. 126

ALABAMA G. S. R. CO. v. CARROLL.

Supreme Court of Alabama

November 22, 1892

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by W. D. Carroll against the Alabama Great Southern Railroad Company to recover damages for personal injuries received while serving as a brakeman on defendant's road. From a judgment for plaintiff, defendant appeals. Reversed.

J W. Fewell and A. G. Smith, for appellant.

Brooks & Brooks, for appellee.

McCLELLAN J.

The plaintiff, W. D. Carroll, is, and was at the time of entering into the service of the defendant, the Alabama Great Southern Railroad Company, and at the time of being injured in that service, a citizen of Alabama. The defendant is an Alabama corporation, operating a railroad extending from Chattanooga in the state of Tennessee, through Alabama to Meridian, in the state of Mississippi. At the time of the casualty complained of plaintiff was in the service of the defendant in the capacity of brakeman on freight trains running from Birmingham Ala., to Meridian, Miss., under a contract which was made in the state of Alabama. The injury was caused by the breaking of a link between two cars in a freight train which was proceeding from Birmingham to Meridian. The point at which the link broke and the injury was suffered was in the state of Mississippi. The evidence tended to show that the link which broke was a defective link, and that it was in a defective condition when the train left Birmingham. It was shown that this link had come to the defendant road at Chattanooga, Tenn., with a car which belonged to, and came to that point over, a road which was foreign to the Alabama Great Southern road; that at Chattanooga this foreign car was coupled into a train of the defendant by means of this link, the destination of the car next in rear of it being Birmingham, and the destination of the second car in the rear of it, which belonged to defendant, being Meridian, to which point the foreign car was also bound. At Birmingham the car between this foreign car and the Alabama Great Southern car, which were billed to Meridian, was cut out, and these two cars were coupled together by means of the link which had come to the defendant with the foreign car. The evidence went also to show that the defect in this link consisted in or resulted from its having been bent while cold; that this tended to weaken the iron, and in this instance had cracked the link somewhat on the outer curve of the bend, and that the link broke at the point of this crack. It was shown to be the duty of certain employes of defendant stationed along its line to inspect the links attached to cars to be put in trains, or forming the couplings between cars in trains at Chattanooga, Birmingham, and some points between Birmingham and the place where this link broke, and also that it was the duty of the conductor of freight trains, and the other train men, to maintain such inspection as occasion afforded throughout the runs or trips of such trains; and the evidence affords ground for inference that there was a negligent omission on the part of such employes to perform this duty, or, if performed, the failure to discover the defect in, and to remove, this link was the result of negligence.

The foregoing statement of facts, either proved or finding lodgment in the tendencies of the evidence, together with the evidence of the law of Mississippi as to the master's liability for injuries sustained by an employe in his service, will suffice for the consideration and determination of the question which is of chief importance in this case, namely, whether the defendant is liable at all, on the facts presented by this record, for an injury sustained by the plaintiff in the state of Mississippi. The affirmative of this inquiry is sought to be rested and maintained upon two distinct propositions. In the first place, it is insisted that the negligence which one aspect of the evidence tends to establish is that of the defendant in respect of a duty which the law imposes upon the master, and which, whether performed, or undertaken to be performed, in the particular instance by the hand of the master, or by the hand of one to whom he had delegated its performance, is yet to be taken as being performed, or attempted to be performed, by the master himself, in such sort that the employer is responsible for its misperformance or nonperformance, whereby injury results to one of his employes, under the doctrine of the common law, and wholly irrespective of statutory provisions. These doctrines are presumed, and also shown, by the evidence in this case, to obtain in the state of Mississippi; and the defendant being an Alabama corporation, it cannot be questioned that an action may be maintained in this state to recover damages for an injury sustained in Mississippi by one of its servants, if the facts present a good cause of action under the law of that state. It is manifest, beyond adverse inference, on the evidence, conceding the link, the breaking of which caused the accident, to have been in a defective condition when it came to defendant's road at Chattanooga, attached to, and intended to be used in, the further transportation of the foreign car, that it was so used from that point to the place of the accident, that this defective condition of the link was patent to such observation as should have been bestowed upon it, and that the defect in it was the proximate cause of the injury to the plaintiff,-it is, we say, clear upon every aspect of the testimony, conceding all this to be true, that the use of that link in coupling the foreign car to the defendant's train, and also in its use throughout the voyage from Chattanooga into Mississippi, was due to the negligence of employes of the defendant, who were charged by it with the duty of inspecting the link before and at the time of incorporating the foreign car into this train, and at the several points in Alabama where inspectors were stationed, as shown by the evidence, and also of the train men charged with the duty of inspection as the train was en route. There is no pretense that the defendant had not been sufficiently careful in the selection of these inspectors, or that they were incompetent. It is not pretended that they were insufficient in number, or stationed at points too widely separated along the line. There is no such idea advanced as that the defendant was negligent in the purchasing of links of adequate strength, and supplying them to these inspectors and to trains generally, or that there was any necessity for the continued use of this link upon a discovery of its defective condition; but, to the contrary, it is affirmatively shown that the defendant purchased and supplied its trains and employes with all necessary links of good quality and perfect condition to be used in its trains, to supply the places of links which became defective from use, and to substitute for defective links coming to this road with foreign cars. The only negligence, in other words and in short, which finds support, by direction or inference, in any tendency of the evidence, is that of persons whose duty it was to inspect the links of the train, and remove such as were defective, and replace them with others which were not defective. This was the negligence, not of the master, the defendant, but of fellow servants of the plaintiff, for which at common law the defendant is not liable. Thus it is said in McKinney on Fellow Servants, § 127: "It is a very common thing for train hands to receive injury through the negligence of persons employed by the company to inspect their cars to discover defects and repair them. The weight of authority, perhaps, is to the effect that the negligence of such employes in the performance of such duties cannot be attributed to the company, and it is consequently not liable for it." Citing, among other cases, Smith v. Potter, 46 Mich. 258, 9 N.W. 273; Mackin v. Railroad Co., 135 Mass. 201; Railroad Co. v. Webb, 12 Ohio St. 475; Railroad Co. v. Rice, (Ark.) 11 S.W. 699; Kidwell v. Railroad Co., 3 Woods, 313; and our own case of Smoot v. Railroad Co., 67 Ala. 13; and these and other cases are cited to the same proposition in 7 Amer. & Eng. Enc. Law, p. 864, note. There are cases which hold to the contrary, but the law is, and has long been, settled in this state as we have stated it; the case of Smoot v. Railroad Co., supra, being directly in point. Railroad Co. v. Thomas, 42 Ala. 672, 720, et seq.; Railroad Co. v. Smith, 59 Ala. 245; Railroad Co. v. Allen, 78 Ala. 494.

This being the common law applicable to the premises as understood and declared in Alabama, it will be presumed in our courts as thus declared, to be the common law of Mississippi, unless the evidence shows a different rule to have been announced by the supreme court of that state as being the common law thereof. The evidence adduced here fails to show any such thing, but, to the contrary, it is made to appear, from the testimony of Judge ARNOLD, and by the decisions of the supreme court of Mississippi, which were introduced on the trial below, that that court is in full accord with this one in this respect. Indeed, if anything, those decisions go further than this court has ever gone in applying the doctrine of fellow servants to the exemption of railway companies from liability to one servant for injuries resulting from the negligence of another, holding, in one case, that a hostler, whose only duty it was to supply an engine with sufficient sand before turning it over to the engineer to go on the road, is a fellow servant of the engineer, for whose negligent failure to supply the sand the company would not be liable, (Railroad Co. v. Petty, 67 Miss. 255, 7 South. Rep....