American Mut. Liability Ins. Co. v. Louisville & N. R. Co.

• Decision Date: 18 March 1948
• Docket Number: 6 Div. 628.
• Citation: 250 Ala. 354,34 So.2d 474
• Court: Alabama Supreme Court
• Parties: AMERICAN MUT. LIABILITY INS. CO. v. LOUISVILLE & N. R. CO. et al.

34 So.2d 474

250 Ala. 354

AMERICAN MUT. LIABILITY INS. CO. v. LOUISVILLE & N. R. CO. et al.

6 Div. 628.

Supreme Court of Alabama

March 18, 1948

London & Yancey and Chas. W. Greer, all of Birmingham, for appellant.

Chas H. Eyster, of Decatur, and Gibson & Gibson, of Birmingham, for appellee.

STAKELY, Justice.

Ingalls Iron Works owned and operated a structural and fabricating plant at Birmingham in June 1942 and employed more than 100 employees among whom was Wilmer L. Warren. The company was under the Alabama Workmen's Compensation Act, Code 1940 Tit. 26, § 253 et seq. The American Mutual Liability Company was its compensation insurance carrier. On June 26, 1942 Warren was killed while on duty at the plant. He left his widow as his sole dependent. The insurance company acknowledged its liability for the payment of compensation and payments were in process at the time this suit was filed and were being made when the case was tried. This suit was brought by The American Mutual Liability Insurance Company for its benefit and the widow's benefit against the L & N. R. R. Co. and others, as will be shown, for negligently and wrongfully causing the death of Wilmer L. Warren. The L. & N. R. R. Co. was charged with being a common carrier engaged in interstate commerce at the time of the accident. Trial resulted in a verdict and judgment for the plaintiff against the L. & N. R. R. Co. On motion of the defendant, the L. & N. R. R. Co., the court set aside the judgment. From the ruling on that motion this appeal has been prosecuted.

The L. & N. R. R. Co. is a common carrier of both intra and interstate freight and passengers. It had in its service a switching crew, complete with five men, McQuaid, foreman; Glover, engineer; Biddings, fireman; Beavers, switchman and Smith, switchman. All of these individuals were originally made parties to the cause along with the L. & N. R. R. Co. By amendment all parties were stricken as defendants except the L. & N. R. R. Co. and Smith.

The plant of Ingalls Iron Works is located just west of the right of way of the L. & N. R. R. Co. and is enclosed in a wire fence. A spur track leads from the main line of the railroad company and passes through a gate at the plant's east boundary. After entering the plant this track branches off into four spur tracks, each running generally east and west through the plant. The track lying furthest north is called Track No. 1. Cars of freight consigned to the Ingalls Company are placed on Track No. 1 where delivery and acceptance from the carrier becomes complete. South of that is Track No. 2. Switching operations are made over this track to the Navy Yard and other operations on the west. About 10 or 12 feet south of Track No. 2 is Track No. 3. Switching operations are made over Track No. 3 to serve the warehouse and steel stock pile and cars are placed on Track No. 3 for both loading and unloading. About 100 feet south of Track No. 3 lies Track No. 4. This track serves that part of the plant to the south and is used for switching operations.

These four tracks run estate and west and are crossed by an overhead crane which operates on two overhead tracks. These crane tracks run north and south and are known as east and west crane tracks. They are 80 feet apart and extend both north and south of railroad Tracks 2 and 3. The crane tracks are supported by upright steel supports resting in concrete abutments. Steel is stacked and stored underneath the crane tracks, the steel strips being about 65 feet long. At the time of the accident here involved, steel was stacked parallel to Track No. 3 on the south 6 to 7 feet from the track and about 7 to 15 feet in height.

There is an open space about 6 feet wide running from north to south underneath the crane which is called 'Hooker's Path.' This path is left open, steel being stacked on both its east and west sides. The purpose of the path is to afford a way for the man known as the hooker to follow the crane and hook the lines carried by the overhead crane for the steel below in either loading or unloading the cars and making delivery where needed. When cars are placed on Tracks 2 and 3 under the crane for loading or unloading, they are usually separated 8 to 10 feet so that the hooker can pass from one side of the railroad tracks to the other in following the crane. This path was also used by expediters and other workmen having business at the plant. If it was necessary to place a car so as to block this path, a passageway was left open across the track usually as near the regular path as possible. An expediter is an employee whose duty it is to see that shortage in material at one point in the plant is remedied by delivery of the needed material from another part of the plant where it is stacked or stored. His duties carry him all over the plant. Wilmer Warren had been employed as an expediter for about a year prior to the injury and was familiar with his duties.

About 36 feet east of the east overhead crane track is a roadway about 25 feet wide running north and south which is used for both vehicular and pedestrian travel by employees of the Ingalls Company.

Car PLE loaded with steal and about 42 to 45 feet long and 7 to 8 feet high above the railroad rails was located on Track 3 under the steel crane. The east end of this car was almost under the east crane track while the west end of this car was a few feet west of the west margin of the Hooker's Path. This caused the car to block the Hooker's Path across the railroad tracks. Car PLE was loaded and not in position for unloading. Tendencies of the evidence showed a car on Track 3 west of car PLE.

At 7 o'clock on the morning of June 26, 1942, the cars on Track No. 1 which had been delivered to the Ingalls Plant during the night were checked and recorded. Among these cars were two cars loaded jointly with steel from Tennessee Coal & Iron Co. These two cars were designated as L & N 25715 and PA 38489.

At 9:15 on the morning of June 26, 1942, the L. & N. engine crew, referred to above, went to the Ingalls Plant 'light', that is without cars attached. The yard plant foreman of Ingalls then took charge and directed the crew foreman as to what cars Ingalls wanted moved and where to place such cars. In other words Moseley, the Ingalls yard foreman, directed McQuaid, the L. & N. crew foreman, as to the movement of the cars and only such cars were moved as were so directed.

The first movement was for the engine to go in on Track No. 1 where seven cars had been placed, including L&N 25715 and PA 38489. The engine pulled these seven cars back up to the switch at the gate and then placed an empty car on Track No. 4. Cars L&N and PA were then placed on Track No. 3. The remaining cars were then put back on Track No. 4. When Cars L&N and PA were put on Track 3 they were stopped a short dictance from Car PLE and chocked from the north with chocks under the east side of the wheels as this track was upgrade from east to west. The opening left between Car PLE and the western end of the two cars loaded jointly will be described later. Cars L&N and PA were to be placed in the Navy Yard but before Cars L&N and PA could be properly placed in the Navy Yard the empty cars there had to be pulled out. Accordingly it was necessary to place Cars L&N and PA on Track 3 until the engine could go down in the Navy Yard and pull out three empty cars and then couple L&N and PA on the west end of these empty cars to be shoved back into the Navy Yard.

The injury to Wilmer Warren occurred about 20 to 30 minutes after L&N and PA cars had been put on Track No. 3.

The engine pulling the three empty cars out of the Navy Yard backed up on the main line and switched from Track No. 2 to Track No. 3 pushing three empty cars ahead of it on Track No. 3 for the purpose of coupling with PA and L&N cars so as to pull them back up to the main line, and there to switch back over to Track No. 2 for delivery to the Navy Yard.

Track No. 3 was straight for a distance of 100 to 120 feet east of east end of Car PA at which point the track began to curve in a northerly direction. The engine and three empty cars traveled west over Track No. 3 to couple with Car PA at a rate of speed of two miles per hour. The engine was still back on the curve at the time Wilmer Warren was injured. It was giving off smoke and the bell was ringing continuously.

When the engine pulled these three empty cars out of Track No. 2 Charlie Smith, the switchman, dropped off at the road crossing about 8 to 10 feet from the east end of Car PA and walked over to Car PA and adjusted the knuckles so that there would be a coupling made when the three empty cars were brought in on Track No. 3 and Charlie Smith remained at the east end of Cars PA and L&N on the north corner until the coupling was made. This was the place for him to be so that he could signal the engineer who was on the right or north side of the engine. Beavers was located down close to the gate at the switch where he had to be to throw the switch so that the engine and empty cars could get from Track No. 2 onto Track No. 3. The engineer and fireman were at their respective places on the engine. McQuaid was standing down about the engine with Moseley. Thus all five members of the train crew were accounted for. While the engine pushing these three empty cars traveling at a rate of speed of two miles an hour, emitting smoke, and the bell ringing, proceeded westwardly on Track No. 3 to couple with Cars PA and L&N, Wilmer Warren, supposedly coming from the Template Shop got over into the Hooker's Path where he was first seen, and proceeded northwardly up this Hooker's Path to where Car PLE was blocking the Hooker's Path. He then turned to his right and walked east along the...