Alabama Great Southern R. Co. v. Davis, 6 Div. 191.

• Decision Date: 22 June 1944
• Docket Number: 6 Div. 191.
• Citation: 246 Ala. 64,18 So.2d 737
• Parties: ALABAMA GREAT SOUTHERN R. CO. v DAVIS.
• Court: Alabama Supreme Court

18 So.2d 737

246 Ala. 64

ALABAMA GREAT SOUTHERN R. CO. v DAVIS.

6 Div. 191.

Supreme Court of Alabama

June 22, 1944

Rehearing Denied July 25, 1944.

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

Jackson Rives & Pettus, of Birmingham, for appellee.

FOSTER, Justice.

The question on this appeal is whether there was sufficient evidence of negligence of appellant or any of its employees which proximately caused the death of plaintiff's intestate (Davis) under the Employers' Liability Act of Congress. 45 U.S.C.A. § 51 et seq. That question does not involve contributory negligence by decedent. If there was sufficient evidence of appellant's negligence decedent's contributory negligence would be material for certain purposes. But decedent's conduct on that occasion is material to determine whether appellant or its employees were negligent proximately causing his death.

Davis the decedent, was what was termed head brakeman on a freight train. That meant that his principal duties were toward the front end of the train. The swing brakeman was toward the back end, and the flagman protected the back end and coupled and switched as needed. The conductor had control of the train. The engineer obeyed his directions and observed signals.

The train was on a trip north toward Birmingham from Bessemer on the east main of a double track, and passed Phoenixville, a station near a cement plant which was north of it and west of the railroad tracks of appellant. The west main was used for the southbound travel which we will call the south main, and the east for north travel, which we will call the north main. The train had switching to do at the plant. To get into the plant from the east or north main line, the train had to travel north from Phoenixville to and over a crossover track from the north to the south main, and down it to a lead track from it to the plant yard. That plant was also served by the Atlanta, Birmingham and Coast Railroad Company whose line was west of the plant and whose engine and crew were at that time switching in its yard, so that appellant's engine and crew had to wait until the service was finished. That was at night. Appellant could not get this entire train of twenty- three cars on it. So that in waiting to get into the cement yard, the train had to wait on the southbound track or the northbound track, as was most convenient. The conductor directed the procedure. He caused the train to pass along the cross-over track to the southbound track and back down that track. That made it the duty of Davis, the decedent, to go forward toward Birmingham, and protect the front from southbound travel. This he did. After waiting three-quarters or an hour a special southbound freight came down. It had been flagged by decedent and he rode down on the engine. The conductor then arranged to move his train to the north track, out of the way. But before doing so discovered a train coming from the south, going north on that track. So he waited for the train to pass. Then decedent lined up the switch on the northbound track for the cross-over, and Atkinson, the swing brakeman, lined it up on the southbound track for the cross-over. The train then made the movement over to the northbound track and passed the switch with its caboose. Then decedent lined up the cross-over switch with the northbound main and crossed that main behind the caboose, and at the same time Atkinson lined it up for the southbound main, and crossed over also and went down the side path nine or ten car lengths (forty feet each) to where the conductor Cagle was standing. The southbound freight was then moving slowly in its course. Atkinson then asked Cagle what he planned to do. He told Atkinson that he would back down on the northbound track and wait. Another train would be due down the southbound track in about an hour. All the trainmen had a time-table showing that schedule. Atkinson then gave with his lantern a little back up signal to decedent and hallooed to him. This was done two or three times. This signal was intended for Davis, whose lantern showed from the side of the northbound track at the switch which was his post of duty.

Davis would ordinarily relay it to the engineer. It is not clear exactly where he was standing. As to that, Cagle testified as follows: "When I noticed Mr. Davis, I saw him go across the switch behind the caboose on the east side. That is the last time I noticed him. As to whether that was his post of duty there on the engineer's side, as we had gotten our train off the south main, he had no reason for being out flagging. His post of duty was there by the switch. The signals were given from the engineer's side. *** the last time I saw him was when he lined the switch and walked across behind his caboose, if it was him that lined the switch and I suppose it was." And Atkinson testified as follows: "Yes, I saw him walk across. The cabooses have lights on both sides of the back end, known as markers. They are kerosene lamps. I was walking in that litle path along by the side of the track as I left Mr. Cagle and started up this way, and I saw that lantern there at that time. It was on the same side of the caboose that I was on, but from just looking I couldn't tell whether he was standing on the track or not. It looked like he was on this side of the track, just looking straight up. When we pass the back up signal, or any kind of signal, every man in the crew does not necessarily have to pass that signal. As to whether under those conditions Davis was supposed to acknowledge my signal, I was passing my signal to Davis, but after the engineer blew three times, I turned around and started walking on back, because that was from the engineer that he got my signal, and three blasts from him was a back up signal. That meant he was going to back up, but I was giving my signal to J. B. Davis." There was no other evidence of his exact position.

After Atkinson gave this little back up signal two or three times, the engineer gave three short blasts of his whistle. This was his back up signal. It was heard and understood by Atkinson and Cagle about thirty-three car lengths away, and by Barnes, the flagman, about forty-five to fifty car lengths away; whereas Davis was only about twenty-three car lengths away. Atkinson hearing it turned his back and walked away from the direction of Davis toward Cagle. Davis did not acknowledge the signal. The train soon began to back and soon afterwards Davis began to halloo, and Atkinson gave the "wash out" signal, for an immediate stop. He gave it also to the south-bound train and stopped it. They went to Davis and found him sitting on the edge of the cross-ties with both legs cut off. The caboose and two coal cars had passed. He was sent in ambulance to the hospital and died that night.

Appellee claims that Davis was not expecting his train to be backed and parked on the north main, and had heard the conversation at Phoenixville that his conductor intended to park it on the south main, but this was always in the discretion of the conductor, dependent upon the respective advantages of each under the particular circumstances.

Atkinson testified that the three short blasts of the whistle was the engineer's back up signal, and the only one he had. That those blasts meant that. That he only heard one such signal from the engineer.

Cagle testified that he did not notice what was the first signal the engineer gave, but that he gave two signals. That the second time he blew a back up signal--three shorts. Also that a call by the engineer for a signal is four shorts. This witness heard two signals, but did not know how many blasts he gave in the first; then he gave three shorts. The witness then testified: "That means backing up. The purpose of giving that signal is to let you know he wants to back up, and he can blow that after he gets a signal, to let you know he is backing up. The purpose of blowing after he gets the signal is to let you know he is backing up, or to let you know he wants to back up; either one. When the back up signal is sounded it does not mean, in all cases, that he is going to back up his train. It might have meant that he had gotten a back up signal and was fixing to obey it, and let the crew know it." "That rule 16c (referring to rule book shown witness) reads: 'When standing, back the train, three shorts,' and that train was standing and when the engineer blew three shorts like I say it means he was going to back the train; it don't mean necessarily he had gotten a signal. It probably meant he was going to back up at that particular time, but that is not always the case. As to whether that is what I understand it to mean at that time, I suppose that is what he meant, calling for the signal that first time."

We here refer to certain established principles of law in connection with this sort of case not in any respect disputed by counsel. This is done only to illustrate the meaning of the issue and what really is controverted.

The gist of this action is negligence of some sort by the railroad company or some employee of it in the scope of his duty, which proximately caused the death of Davis. There is no presumption of negligence. The evidence to sustain the claim must be of a substantial sort, more than a scintilla and it cannot be predicated on a conjecture, or a supposition that there might have been negligence which proximately caused it. But the inference of negligence must be from a...