Alabama Great Southern R. Co. v. Cornett

Citation106 So. 242,214 Ala. 23
Decision Date22 October 1925
Docket Number6 Div. 322
CourtSupreme Court of Alabama

Rehearing Denied Nov. 19, 1925

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action for damages by Cora Lee Cornett, as executrix of the estate of W.H. Cornett, deceased, against the Alabama Great Southern Railroad Company. From a judgment for plaintiff for $25,000 defendant appeals. Affirmed.

Stokely Scrivner, Dominick & Smith, and Andrew J. Thomas, all of Birmingham, for appellant.

Black &amp Harris, of Birmingham, for appellee.


The case was submitted to the jury on count 10 as amended. Among other things it is therein averred:

"*** Plaintiff's intestate was employed by the defendant as a switchman or switching foreman, and, while being so employed by the defendant in and about said interstate commerce, and while engaged in the actual performance of the duties of his employment by the defendant in and about said interstate commerce uncoupling cars for defendant in such interstate commerce, plaintiff's intestate was killed in Jefferson county, state of Alabama, as follows: A railroad car ran into, upon, or over plaintiff's intestate, and injured and killed him.
"Plaintiff further avers that the injury to and death of plaintiff's intestate was proximately caused by the defendant, as such common carrier, hauling, or permitting to be hauled or used, on its line a car used in moving interstate traffic, not equipped with couplers which could be uncoupled without the necessity of men going between the ends of the cars.
"*** The plaintiff, as such administratrix, sues the defendant herein for the use and benefit of Cora Lee Cornett, the widow, and of said children, the dependents of the deceased, and claims as additional and special damages for said children damages for the loss of the care, attention, instruction, training, advice, and guidance which they would have received during their minority from their father, W.H. Cornett, if he had not been killed as aforesaid."

The reply was the general issue.

It is the contention of the plaintiff that the deceased attempted to uncouple the Atlantic Coast Line car from the New York Central car; that, due to the defective condition of the coupler operated and controlled by the lift lever on the side of the Atlantic Coast Line car, he was unable to uncouple the cars; and thereupon he went between the cars for the purpose of uncoupling them, and, as a result, fell underneath the wheels of the cars. The position of the defendant is that there was no direct evidence as to the cause of the injuries to the deceased beyond the undisputed fact that decedent was run over by one of the cars; that it was not for the jury to conjecture as to the cause thereof; and that the plaintiff failed to sustain the burden of proof placed upon her to show that said injuries were caused by defendant hauling, or permitting to be hauled or used, on its line a car used in interstate commerce not equipped with couplers which could be uncoupled without the necessity of going between the ends of the cars in the discharge of the duty of uncoupling said cars.

Defendant concedes that at the time of the injuries to the deceased it was a common carrier by railroad, engaged in commerce between the states, and that at the time of his injuries the deceased was engaged in handling cars moving in interstate commerce, so that the provisions of the federal Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U.S.Comp.St. § 8605 et seq.]) and the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [[[U.S.Comp.St. § 8657 et seq.]) have application to this cause of action. The contentions of the defendant as to this phase of the case are that the evidence failed to disclose a violation on its part of section 2 of the Safety Appliance Act (U.S.Comp.St. § 8606) to the effect that at the time of the injuries complained of it (defendant) was using a car with a defective coupler within the provisions of said act; and that, conceding that at the time of the injuries to deceased it was using a car with a defective coupler, plaintiff failed to discharge the burden of proof that such violation of the act proximately caused the injuries which resulted in the death of deceased.

The primary questions for decision are presented by the refusal to give the general affirmative charge at defendant's request, and the refusal to instruct the jury that plaintiff administratrix could not recover on behalf of the minor children of deceased on the "basis of loss of advice, care, instruction, training, and guidance" that said minors sustained as a result of the death of the father.

The Supreme Court of the United States has stated the reason for the enactment of the federal statute as follows:

"*** The Congress, not satisfied with the common-law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that 'no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard.' There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the Legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it. *** It would be better, it was once said by Lord Eldon, to look hardship in the face rather than break down the rules of law. But when applied to the case at bar the argument of hardship is plausible only when the attention is directed to the material interest of the employer to the exclusion of the interests of the employee and of the public. Where an injury happens through the absence of a safe drawbar there must be hardship. Such an injury must be an irreparable misfortune to someone. If it must be borne entirely by him who suffers it, that is a hardship to him. If its burden is transferred, as far as it is capable of transfer, to the employer, it is a hardship to him. It is quite conceivable that Congress, contemplating the inevitable hardship of such injuries, and hoping to diminish the economic loss to the community resulting from them, should deem it wise to impose their burdens upon those who could measurably control their causes, instead of upon those who are in the main helpless in that regard. Such a policy would be intelligible, and, to say the least, not so unreasonable as to require us to doubt that it was intended, and to seek some unnatural interpretation of common words. ***" St. L., I.M. & S.R. Co. v. Taylor, 210 U.S. 295, 28 S.Ct. 616, 621, 52 L.Ed. 1061, 1068.

The same finds support in S.A.L.R. Co. v. Padgett, 236 U.S. 668, 35 S.Ct. 481, 59 L.Ed. 777; M., St. P. & S.S.M.R. Co. v. Popplar, 237 U.S. 369, 35 S.Ct. 609, 59 L.Ed. 1000; U.S. v. Erie R. Co., 237 U.S. 402, 35 S.Ct. 621, 59 L.Ed. 1019; Arizona Copper Co. v. Hammer, 250 U.S. 400, 39 S.Ct. 553, 63 L.Ed. 1058, 6 A.L.R. 1537; Louisville & Jeffersonville Bridge Co. v. U.S., 249 U.S. 534, 39 S.Ct. 355, 63 L.Ed. 757, 759, and authorities collected.

Under the federal statutes entering into the decision of this case, any misconduct of said intestate, being no more than contributory negligence, is excluded as a defense in bar to a recovery by the terms of the Employers' Liability Act (35 Stat. 66 [U.S.Comp.St. §§ 8657-8665] vol. 2, Roberts Fed. Liab. of Carriers, p. 1406, §§ 863-868), and by those of the Safety Appliance provisions, 27 Stat. 532 (U.S.Comp.St. § 8612); Barnes' Fed.Code (1919), pp. 1929, 1937, §§ 8030, 8071; Roberts Fed.Liab. of Carriers, p. 773 et seq.; Ala. & V.R. Co. v. Dennis, 128 Miss. 298, 91 So. 4. Pertinent observations of Mr. Justice Pitney are contained in San Antonio, etc., Co. v. Wagner, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110, 1117.

The common-law duty of due care is changed to that of an absolute duty in respects indicated by Congress. A failure of a coupler to work at any time when required or necessary held to sustain a charge of negligence or failure of statutory duty in the premises (Chicago, etc., Co. v. Brown, 229 U.S. 317, 33 S.Ct. 840, 57 L.Ed. 1204; C., B. & Q.R. Co. v. United States, 220 U.S. 559, 31 S.Ct. 612, 55 L.Ed. 582; St. L., etc., Co. v. Taylor, 210 U.S. 281, 28 S.Ct. 616, 52 L.Ed. 1061); that is to say, this prescribed and required safety appliance must not only be provided, but duly maintained in condition for operation (L. & N.R. Co. v. Layton, 243 U.S. 617, 37 S.Ct. 456, 61 L.Ed. 931). When the statute is so understood, the conduct of plaintiff's intestate was immaterial, though in contravention to positive rules or instructions by defendant. Noel v. Q.O. & K.C.R. Co. (Mo.App.) 182 S.W. 787. There was no error in the court's rulings and refusal of charges as to the rules of defendant as affecting intestate's conduct in disregard of said rules and defendant's liability for injury inflicted while so disregarding the rules. Texas & P.R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 60 L.Ed. 874, 877.

In Minneapolis & St. Louis R. Co. v. Gotschall, 244 U.S. 66, 37 S.Ct. 598, 61 L.Ed. 995, 996, Mr. Chief Justice White said:

"The jury, under an instruction of the court, was permitted to infer negligence on the part of the company from the fact that the coupler failed to perform its function, there being no other proof of negligence. It is insisted

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