Alabama Great Southern R. Co. v. Baum

• Decision Date: 19 June 1947
• Docket Number: 6 Div. 485.
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. BAUM.
• Court: Alabama Supreme Court

31 So.2d 366

249 Ala. 442

ALABAMA GREAT SOUTHERN R. CO. v. BAUM.

6 Div. 485.

Supreme Court of Alabama

June 19, 1947

Rehearing Denied July 31, 1947.

Benners Burr, Stokely & McKamy and Robert Greye Tate, all of Birmingham, for appellant.

Taylor Higgins, Koenig & Windham, of Birmingham, for appellee.

The following charges were refused to defendant:

'7. The court charges the jury that the fact, if it be a fact, that the plaintiff fell from the steps of the locomotive is not in itself any evidence of negligence.'

'16. I charge you that the burden is upon the plaintiff to prove to your reasonable satisfaction that one of the defendant's servants, agents or employees had knowledge or notice of the presence of ice on the steps of the locomotive or that such ice had been present upon said steps for a sufficient length of time as to reasonably charge the defendant with knowledge thereof, and if you are not so reasonably satisfied then your verdict should be for the defendant.'

LIVINGSTON, Justice.

H. M Baum brought suit in the court below under the Federal Employers' Liability Act, Title 45 U.S.C.A. § 51 et seq., against the Alabama Great Southern Railroad Company to recover damages for personal injuries alleged to have been suffered by him while he was in the employ of the defendant, engaged in the line of duty in handling interstate commerce.

The cause was tried on a single count, to which defendant's demurrer was overruled, and pleas of not guilty and contributory negligence in mitigation of damages.

There was verdict and judgment for the plaintiff in the sum of $12,000, from which defendant appealed.

It was without dispute that the appellant was a common carrier by railroad and that both appellant and appellee were engaged in interstate commerce at the time of the injury. It was also without dispute that appellee was engaged in the performance of his duties in such interstate commerce when injured.

The appellee sustained his injuries in attempting to alight from a locomotive at Akron, Alabama, at about 12:30 A.M. on December 15, 1944. The weather at the time was clear and cold, below freezing. Appellee attempted to alight from the locomotive while it was in motion to pick up orders. He started down the steps of the locomotive, which steps were dark, by backing down in the usual way. Appellee's theory was that ice had formed on the last or bottom step which caused him to slip and fall: that the ice formed on the step because of a defective or insufficient foot warmer pipe, or a cylinder head, both of which leaked steam which was blown to said step and froze thereon.

Appellee testified: 'I got to the bottom step; I had let my left foot descend from the step to touch the ground and as it was supposed to touch the ground to loose the right foot and catch my balance just as I had done that. My right foot went off of that step and both hit the ground at the same time, which threw me around to the engine, but I still had hold of the grab-irons, and right in that particular place there is a small elevation. God knows if I had turned loose there, I would have went under there. I held to the grab-irons and I pushed myself away from the engine and fell, and that is when I got hurt.' Appellee further testified that it was his right foot that slipped off. He did not know that there was any ice on the bottom step. He had not been down those steps previously. He fell headlong to the engine and face forward. The left side of his body hit the ground first. He don't know exactly what happened, but when he came to himself he was sitting on a little motor car and his arm was paining him so severely he got up and walked into the operator's office and told the operator he wanted a doctor, that he was hurt.

The single count on which the cause was tried, charges that appellee's injuries were proximately caused 'by reason of a defect or insufficiency, due to the negligence of the defendant in its engine, appliances, or machinery, proximately causing plaintiff to slip on said step and to be thrown to the ground, thereby proximately causing his aforesaid injuries and consequent damages.'

Appellant's attack on count 2, the count on which the case was tried, is premised on appellee's failure to allege the manner of the defect or insufficiency, and that appellant had knowledge or notice of said defect or insufficiency.

The pertinent parts of section 51, title 45 U.S.C.A., is as follows: 'Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury or death resulting in whole or in part from * * * or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery', etc.

The above-quoted part of count 2 is in almost the identical language of the statute.

In Southern Railway v. Peters, 194 Ala. 94, 97, 69 So. 611, 613, it was held: 'The complaint in this case sufficiently sets up a cause of action under the federal Employers' Act. It sets forth every condition under which liability arises, and sets this forth substantially in the language of the statute. 35 Stat.L. 65, Fed.Statutes Annotated, Sup. 1909, p. 584. This is all that is required of the complaint. Grand Trunk Western R. Co. v. Lindsay, 233 U.S. 42, 34 S.Ct. 581, 58 L.Ed. 838, Ann.Cas.1914C, 168; Seaboard Air Line R. Co. v. Duvall, 225 U.S. 477, 32 S.Ct. 790, 56 L.Ed. 1171; Atlantic Coast Line R. Co. v. Jones, 9 Ala.App. 499, 63 So. [693], 696. See, also, Id. , 67 So. 632. The complaint was not subject to the defendant's demurrer.' See, also, McDonnell v. Murnan Shipbuilding Corp., 210 Ala. 611, 98 So. 887.

Court 2 stated a cause of action under section 51, supra.

Appellant's refused charges 18, C, 16 and 20, premised on lack of notice or knowledge of the ice on the step were for the foregoing reasons properly refused.

Appellant's refused charge 19 is as follows: 'I charge you that if you are reasonably satisfied from the evidence in this case that plaintiff descended the steps of the locomotive without exercising ordinary care for his own safety, and you are further not satisfied that defendant, its agents, or servants, were negligent, then you cannot return a verdict for the plaintiff.'

Contributory negligence is no defense in this case. If appellee was guilty of contributory negligence, that fact only mitigates the damages. Charge 19 is misleading and confusing. It tended to authorize the jury to consider contributory negligence on the part of appellee as a bar to recovery.

Appellant's refused charge 7 is invasive of the province of the jury, and was properly refused. See, Thaggard v. Vafes, 218 Ala. 609, 119 So. 647.

Charge 13, if a correct instruction, which we need not decide, was covered in appellant's given charge 15, and the trial court did not err to a reversal in refusing it.

Assignments of error 10 and 11 are premised on the refusal of the general affirmative charge for appellant hypothecated on a belief of the evidence.

Appellant offered no testimony. The evidence on behalf of appellee showed without contradiction that the 'cylinder head on right side leaking bad' (engineer's report); that the cylinder in question was in front of the steps from which the plaintiff slipped and fell; that the steam leaking from the cylinder head went right back against the tender and over the step; that the foot warmer exhaust was also leaking steam at a point just in front of the steps; that there was ice on the step; and that because of the ice, plaintiff slipped and fell as he was in the act of getting off the engine in and about the performance of his duties. That there were these defects in the engine, is without dispute. That the steam escaping from the defective parts of the engine passed over and settled on the step, is without dispute. That under the climatic conditions shown, the steam in question froze and formed ice on the step cannot be doubted. That plaintiff slipped because of the ice, and was painfully and permanently injured, cannot be questioned. Contributory negligence of the plaintiff, if any, is not a bar to the suit, but may be considered only in mitigation of damages.

The general charge, or general charges, were properly refused.

Assignments of error 12 and 13 were predicated upon the trial court's action in overruling appellant's objection to the following question and motion to exclude the answer thereto: 'Q. He (appellee) cubbed to be a brakeman? A. No sir.'

The undisputed evidence shows that appellee's regular employment with the defendant was that of a locomotive fireman, but that on the occasion in question he was performing the duties of brakeman, the positions involving different duties. Contributory negligence was an issue. The same act might be negligence as to a brakeman and not as to a fireman, and vice versa. The evidence was competent. Appellant's assignment 14, based on the trial court's refusal to declare a mistrial on account of the foregoing question and answer is without merit.

Assignment of error 15.

In connection with the testimony of one Nichols, a flagman, a report made by the engineer Farmer at the end of the run, and showing that the right cylinder head was 'leaking (steam) bad,' was, over appellant's objection, admitted in evidence. The preliminary proof as to the report of the condition of the cylinder head and the like, was by the flagman who testified he saw the report made, was familiar with the facts, and knew and identified the handwriting of the engineer who wrote out the report, and that such report was made in the usual course of business. Under these circumstances, we...