Alabama Great Southern R. Co. v. Smith

• Decision Date: 11 October 1951
• Docket Number: 6 Div. 15
• Citation: 256 Ala. 220,54 So.2d 453
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. SMITH.
• Court: Alabama Supreme Court

Page 453

54 So.2d 453

256 Ala. 220

ALABAMA GREAT SOUTHERN R. CO. v. SMITH.

6 Div. 15.

Supreme Court of Alabama.

Oct. 11, 1951.

Benners, Burr, Stokely & McKamy, Birmingham, for appellant.

D. G. Ewing and Hal Howard, Birmingham, for appellee. The count of the complaint upon which the case was tried is as follows:

'Count B.

'The plaintiff claims of the defendant the sum of Seventy-five Thousand ($75,000.00) Dollars as damages, for that heretofore on, to-wit: the 28th day of January, 1947, the defendant was a common carrier by railroad of freight and passengers for hire or reward, and, as such common carrier by railroad, was engaged in interstate commerce, being engaged in the business of transporting freight and passengers for hire or reward by said railroad in Birmingham, Jefferson County, Alabama, and from the State of Alabama to some of the other several states of the United States, namely, Mississippi, Tennessee and other States and from said States of Mississippi, Tennessee, and such other States to the State of Alabama, and between the said State of Alabama, and the States of Mississippi, Tennessee, and such other States and, as such common carrier by railroad, and as such common carrier was engaged in transporting interstate commerce by railroad between said States herein named; and the plaintiff alleges that on said date, to-wit: the 28th day of January, 1947, the plaintiff was a servant or employee of the defendant and engaged in such interstate commerce, and while he was as such servant or employee engaged in such business or service of the defendant and on a locomotive engine owned, controlled or operated by the defendant, and which locomotive engine was engaged in such interstate commerce, and while the plaintiff was in the discharge of his duties as such servant or employee, and while said locomotive engine and plaintiff were in Birmingham, Alabama, and at a place in said City of Birmingham, Alabama, on said railroad so owned, controlled or operated by the defendant, and within or near that railroad shop commonly known and designated as the Alabama Great Southern Railroad Shop, and at a place on said railroad located between Twenty-seventh Street and Twenty-eighth Street in Birmingham, Alabama, the plaintiff was jerked, jarred or thrown, or was caused to fall from said locomotive engine to the track of said railroad or to the ground immediately adjoining said track, and plaintiff was thereby caused to sustain, and did sustain, the following injuries and damages: * * *

'The plaintiff alleges that at said time and place aforesaid there was a defect and insufficiency in the upper and foremost petcock attached to and located on the water pump on and a part of said locomotive engine, in that said petcock was so worn or loose that same would not remain in the position in which it was placed but, without being moved by manpower or human agency, would shake or come loose by and from the jarring or vibration of said locomotive engine and change its position when closed to such an extent that it would shake loose and become open to such extent that water would spurt or flow therefrom, and said petcock at said time and place had so shaken or come loose so as to allow water to spurt or flow therefrom, and the plaintiff then and there undertook or attempted to close said petcock so as to prevent the flowing or spurting of water therefrom and in so doing it was necessary for plaintiff to stand upon or put the weight of his body upon the running board of the engine immediately above and adjacent to said water pump and the air pump located by the side of said water pump with one of the plaintiff's feet resting upon said water pump and then to lean over in order to reach said petcock and close the same so as to stop or prevent the spurting or flowing of water therefrom, and while the plaintiff was in the act of and attempting to so close said petcock he was jerked, jarred or thrown or was caused to fall, from his then said position on said locomotive engine a distance of approximately ten or twelve feet and on to the roadbed or track of said railroad or hard ground adjacent to and alongside of said railroad track or roadbed on which such engine was then located and plaintiff thereby sustained and suffered all of his said wounds, injuries, losses and damages hereinabove set forth; and plaintiff alleges that his said wounds, injuries, losses and damages aforesaid were caused from and resulted in whole or in part from said defect in the appliances or works or other equipment of the defendant, which defect consisted of the defective condition and insufficiency of said upper and foremost petcock, which defect and insufficiency was due to the negligence of the defendant or the servants, agents or employees of the defendant or some one of them, while acting within the line and scope of his or their employment as such, in that said defendant or its said servants, agent or employees, or some one of them, while acting within the line and scope of his or their employment as such, negligently caused or negligently permitted said petcock to become or remain defective and insufficient as aforesaid, for all of which plaintiff claims damages under and by force of the Federal Employers' Liability Act and the Federal Safety Appliance Acts under which this suit is brought, relative to liability of a common carrier by railroad engaged in interstate commerce.'

FOSTER, Justice.

This suit is based on a claim for personal injuries, alleged to result in whole or in part by reason of a defect or insufficiency of a petcock which was a part of a locomotive engine, due to the negligence of defendant or its servants, etc., acting in the line and scope of their employment, in violation of the Federal Boiler Inspection Act.

The facts are that A. H. Smith was a locomotive engineer for the Alabama Great Southern Railroad Company, a common carrier engaged in interstate commerce. On January 28, 1947, he was operating a steam locomotive on a freight run from Meridian, Mississippi, to Birmingham, Alabama. This locomotive had undergone the usual inspection in the railroad yards at Meridian and had been released by the inspector as being in suitable operating condition for the trip in question. About thirty miles out of Meridian, Smith noticed that a petcock on the water pump was leaking water. The water pump on a steam locomotive is the mechanism which supplies water to the boiler: it is attached to the side of the boiler some ten or eleven feet from the ground and is located approximately half way between the front end of the engine and the cab. There are four petcocks attached to the water pump. The one which was leaking was on the upper inside part of the pump and angled in towards the boiler. Because of the position and distance from the ground of this petcock, the only way a man could reach it (except in the yards or roundhouse where a ladder is used) was by climbing on a steel running board which is also bolted to the boiler and runs, at different levels, the entire length of the engine. That part of the running board on which Smith had to stand in order to tighten the petcock was located immediately over the water pump, at a height of twelve feet from the ground. In order to reach the petcock below him, Smith had to balance himself in a somewhat precarious position with one foot on the running board and the other foot placed on the air pump, which is also located on the side of the boiler below the running board and immediately in front of the water pump.

From an examination of the picture of the locomotive in question and from the testimony offered at the trial, the jury could find that the method employed by Smith was the only way in which he could have reached the petcock.

The plaintiff testified that he thought it was his duty to tighten the petcock and try to stop the leak. The company had instructed its engineers to do whatever they could to remedy the defect in case of a breakdown on the road. Although there was no immediate danger from the water leak, it was testified that it would reduce the water pressure in the boiler and that a reduction of pressure, if it became sufficiently great, could result in serious damage. There was also testimony to the effect that the water was being thrown, with each stroke of the pump's pistons, in a small stream or in spurts for a distance of fifteen or twenty feet, and that this stream was directed toward the driving boxes and might in time wash away the lubricating grease from the running gear of the engine and cause damage to it.

The first occasion on which Smith noticed the leak was, as has been said, when the train was only some thirty miles from Meridian. Smith tightened the petcock at this time. Later he again noticed the leak when the train was stopped near the entrance to the yard in Brimingham while waiting for the signal to enter the yard. The petcock had not been touched by anyone since Smith last tightened it. There was testimony to the effect that it would not have come loose during the trip unless the threads were badly worn and defective so that the vibration of the engine might cause the tap, or a nut on the valve, to shake loose thereby permitting water to escape. On this occasion, Smith again attempted to tighten the petcock, assuming the same position described above, with his right foot on the sloping surface of the air pump. This time, however, the air pump (which goes on and off automatically, as the air pressure in the brake line varies) happened to start operating while his foot was placed on it, and the vibration of the air pump was sufficient to cause him to lose his balance and fall to the ground, with the result that he sustained the permanent injury to his right ankle which is the basis of this suit.

There was testimony that Smith could have turned off the air pump before climbing up on the engine and resting his foot on it. It was conceded, however,...