Atlantic Coast Line R. Co. v. McMoy

• Decision Date: 20 May 1954
• Docket Number: 6 Div. 632
• Citation: 73 So.2d 85,261 Ala. 66
• Parties: ATLANTIC COAST LINE R. CO. v. McMOY.
• Court: Alabama Supreme Court

Page 85

73 So.2d 85

261 Ala. 66

ATLANTIC COAST LINE R. CO. v. McMOY.

6 Div. 632.

Supreme Court of Alabama.

May 20, 1954.

The following charges were refused to defendant:

Charge No. 25:

'The Court charges the jury that if you are reasonably satisfied from the evidence that the sole proximate cause of injury and death of C. L. McMoy, Sr., on the occasion complained of was his failure to give notice to the crew of the yard switch engine of his presence between or around the cars on track Number 5 by displaying a blue light or otherwise, then your verdict must be for the defendant.'

Charge No. 26:

'The Court charges the jury that if you are reasonably satisfied from the evidence that C. L. McMoy, Sr., was coupling the air hoses between two cars of a cut of railroad cars standing on track Number 5 in the defendant's Dothan Yards at the time the yard switch crew shoved another cut of cars into such track Number 5 and against such cut of cars around which McMoy was then so working, and if you are further reasonably satisfied from the evidence that the sole proximate cause of the injury and death of C. L. McMoy, Sr., was his failure to display a blue light on such standing cut of cars or otherwise notify the switch crew of his presence between or around such standing cars, then your verdict must be for the defendant.'

Peyton D. Bibb, Graham, Bibb, Wingo & Foster, Birmingham, for appellant.

W. G. Hardwick, Dothan, and Jackson, Rives, Pettus & Peterson, Birmingham, for appellee.

STAKELY, Justice.

This is a suit brought by Mrs. Bertie Mae McMoy, as administratrix of the estate of C. L. McMoy, deceased (appellee), against the Atlantic Coast Line Railroad Company (appellant), under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for the death of her husband C. L. McMoy on July 26, 1952. On the aforesaid date C. L. McMoy was employed as a car inspector by the Atlantic Coast Line Railroad Company, the railroad being engaged at the time in interstate commerce.

The case went to the jury on Counts A, B and C. Each of the aforesaid counts contained averments of engagement in interstate commerce, that C. L. McMoy was employed by the defendant as a car inspector in the Dothan Yards of the railroad and that he was run over and killed by the wheels of a railroad car in the aforesaid yards on July 26, 1952. In addition to the foregoing allegations Count A charged liability on the part of the defendant for negligent failure to use reasonable care to furnish a reasonably safe place to work. Count B charged the defendant with liability for negligently kicking a cut of 14 cars violently against a cut of cars about which the deceased was working as a car inspector. Count C charged the defendant with liability for negligently failing to warn the deceased that the cut of cars was about to be kicked against the cut of cars about which the deceased was working as a car inspector.

The defendant pleaded in short by consent the general issue and contributory negligence. The verdict of the jury was for $47,500, which was reduced on the motion for a new trial by a remittitur to $30,000. Upon acquiescence in the order of the court on defendant's motion for a new trial, reducing the amount of the verdict and judgment as aforesaid, the motion for a new trial was overruled.

C. L. McMoy, age 52, worked for a number of years for the Atlantic Coast Line Railroad Company. He was a car inspector until the time of his death on July 26, 1952. His duties involved the physical inspection of cars, including inspection of safety appliances or brakes, qualifying cars as to the type of commodity for which they were suited, coupling of air hoses on cuts made up for outbound movments inspection of through trains, cuts of cars picked up by through trains in the yards and cuts of cars set out in the yards by through trains.

On the day of his death McMoy reported for work at 4:00 o'clock P. M. and was to have completed his work at 12:00 o'clock midnight. One of the through trains which regularly came through at this period was No. 213. McMoy was to work this train and the cars it picked up to take out of the yards. This duty included a test of the train brakes after it was ready to go and to be cleared out and then to inspect the cuts of cars brought in by the through trains left in the yard. After having completed the work on No. 213, his next duty was to work or inspect the cut of cars being made up to go out on the next later train, No. 216.

Train No. 213 came into the yards about 9:20 P.M. At that time McMoy was talking with F. W. Green, yard foreman of the yard switch crew handling the cars in the yard that night, about the work to be done. The foreman advised McMoy of the immediate approach of Train No. 213 and of the cars to be picked up by that train in Dothan. McMoy then asked the switch foreman about the cars to be picked up by the next train, No. 216. The switch foreman told McMoy that the pickup for No. 216 would be made up on Track No. 5, on which a number of cars for that pickup were located. McMoy then asked how soon the foreman would complete making up the pickup for No. 216 and the switch foreman told McMoy that he did not know as he had several more switches to make on it. McMoy said: 'All right.' Train No. 213 then arrived. No. 213 set off 38 cars and picked up two cars. The switch foreman saw McMoy walk around No. 213 and saw McMoy give the usual inspector's brake test signal with his light to the engineer of No. 213, to which signal the engineer responded. This was approximately 9:55 P.M.

Thereafter no one saw McMoy until his body was found by yard clerk, G. B. Stokes, at about 10:25 P. M. that night, at a point between Tracks No. 5 and No. 6, and at a point about 1291 feet west of the west end of the engine shed in the Dothan Yards.

All the witnesses testified that the place of the accident was dark, that this area had never been lighted and that there were no electric lights down there. There were no lights in the yard west of the engine shed in the direction where McMoy was working for a distance of 1200 to 1300 feet.

At the time McMoy was found he was unconscious and apparently dead. There were indications that at the time he was checking the 216 pickup. After going a short distance Stokes saw a light, a switchman's lantern, about 8 cars away. It was sitting to the left of the path between tracks 5 and 6 and thus closer to 5. The lantern was sitting straight up just as one would 'set one down.' As Stokes tells it, just as he was beginning 'to wonder where the Car Inspector was, I saw him in the shadows, his head facing east and his feet west at an angle.'

McMoy's right hip had been crushed through the groin and his left leg had been severed at the ankle. Inspection disclosed a substantial amount of blood on the north rail about 17 feet east of his body, a lesser amount of blood on the rail about 24 feet east of his body, and there were markings on the ground between the rails indicating that something had been dragged under the car for a distance of approximately 28 feet. The indications were that the third car from the west end of the cut standing on track No. 5 and beside which his body was found, had run over him.

Stokes also testified that directly opposite where the lantern was sitting so as to be in its ray and between the rails of track No. 5, he observed a pile of gravel. In general appearance it was loose gravel and in it were one or two footprints, which Stokes remembered as being 'sunken in kind of like, in other words like he braced himself.' Stokes described the position a man usually adopts to couple the air hose. He said, 'Generally they step in like this and bend over and take the hose with their hands and put them together and they lock in place. * * * They do this with one foot across the rail and one outside.' Other witnesses also remembered the impression in the gravel.

The customary manner of connecting the air hose was described by the witness Morrison as follows: 'You walk in this way and step over the rail with this foot and reach down and get the hose on the far side and couple them together just like that.' He pointed out that one foot is kept on the outside of the rail, while they are doing this work, connecting the hoses, which are uniformly placed on all cars. The following questions were propounded to the witness Morrison, to which he gave the following answers:

'Q. I will ask you this question: Suppose you are working on a cut of cars, we will say is 12 cars long and you were working between the 10th and 11th car coupling the air like you described you did it, and on the far end of that cut of cars another cut of cars is connected to it at a speed of about 3 miles an hour, do you hear that car hit from where you are working between the 10th and 11th car? A. Can you hear it hit?

'Q. Yes. A. Yes, sir, you can.'

The Court then asked the witness the following question to which he gave the following answer.

'Q. The Court: Of course, it may be true that one man may react more readily than another. Let me ask him this: About how long would you hear such a blow such as that between the 10th and 11th car, before the car nearest you would move?

'The Witness: In my judgment, it would be one or two seconds.'

In the same connection the defendant's witness, Car Inspector Hall, on cross-examination testified as follows:

'Q. Mr. Hall, how long does it normally take a Car Inspector to couple an air hose? A. An air hose?

'Q. Yes. A. Just a breath. You just pop it right together if you know how.

'Q. So the normal length of time you are between two cars you say is just a breath? A. Yes, sir, by the time you get in you are coming back out.'

J. B. Johnson, a witness for the defendant testified in part in substance as follows: In July of 1952, when McMoy was killed, he was working as a switchman. He was the pin man in the switching crew building the pickup of 216 in track No. 5. Of...