Atlantic Coast Line R. Co. v. Hardwick

• Decision Date: 18 January 1940
• Docket Number: 3 Div. 295.
• Citation: 239 Ala. 58,193 So. 730
• Parties: ATLANTIC COAST LINE R. CO. v. HARDWICK.
• Court: Alabama Supreme Court

193 So. 730

239 Ala. 58

ATLANTIC COAST LINE R. CO. v. HARDWICK.

3 Div. 295.

Supreme Court of Alabama

January 18, 1940

Rehearing Denied Feb. 22, 1940.

Appeal from Circuit Court, Montgomery County; Eugene W. Carter Judge.

Action by Viola Hardwick, as administratrix of the estate of Grady Hardwick, deceased, against the Atlantic Coast Line Railroad Company, under Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

In action for employee's death when ventilator door lever on locomotive broke, striking employee, refusal to permit railroad expert to testify as to whether ventilator lift was suitable for purpose for which it was used was reversible error notwithstanding that expert had testified that character of ventilator and ventilator support had been used on railroad's engines for years, since such testimony was not a direct answer to question sought to be propounded to expert.

The bill of exceptions shows that upon reconvening of the court at 2:30 P.M., October 26, 1938, after a recess taken at 1 P.M., attorneys for defendant requested the court to have the jury retire. After the jury's withdrawal defendant "moved the court that the case be taken from the jury and a mistrial entered because of the improper conduct of a bystander or bystanders, friends of the plaintiff, in handing a note or notes to a member of the jury. And defendant offered to make proof in support of its said motion."

The witness William J. Lancaster, called by defendant, testified that he was medical director for the defendant; that "During the progress of the trial this morning, I saw a person in the court room hand a note or paper to a member of the jury. I could identify the person that handed the note. I can point her out in the court room now. It was the young lady yonder. * * * I can identify the juror."

The juror George McAdams was brought into the court room exhibited to the witness and retired. The witness then testified: "That is the man, the juror to whom the paper was handed. The time was 11:20. I made a note of it, wrote it down. I was sitting in the seat behind her. The juror was sitting on the end seat; she was sitting on the second seat in front. * * * I am not a witness for defendant in this case. I am attending the trial as chief surgeon for the defendant. * * * The handing of the note or paper to juror by the young lady, both of whom I have pointed (out) is the only evidence of any misconduct at all that I have seen in the trial. I dont know anything about what it was, I just saw her hand him some paper. * * * It was done while the jury was in the box just before recess. I did not call any attention to it at the time. I just asked attorneys for defendant at recess at noon if it was permissible for spectators to hand things to jurors."

The witness J. G. Gissendaner testified that Mrs. Johns was out at his house the preceding April, one night about 9:30 o'clock; that "She said that night she was with the Mother of Mrs. Hardwick--Mrs. Branch. She is the one that came with Mrs. Branch to get the statement from me."

Mrs Johns testified:

"I do not know Mr. McAdams. I did not give any letter or any written memorandum to Mr. McAdams, a man on the jury. I did not pass a piece of paper to any member of the jury. I was sitting just over there, but I did not pass it. The juror was just next to the end, but I did not pass any paper. I did not make any motion to extend my hand toward him. * * *

"I have taken an interest in this case. Mrs. Hardwick was a friend of mine is the only interest I have in the case. The only employes of the Railroad I went to see was Mr. Gissendaner. Mrs. Branch had no car and I took Mrs. Branch there to his house. * * *

"When I went to see Mr. Gissendaner it was before Mr. Hardwick's death, and before this case arose. I have not tried to talk to any juror at all about this case, and have not handed any juror a note of any kind."

The juror McAdams being called to the stand was asked by the court if any one in the court room passed any letter or any memorandum to him during the trial of the case, and answered: "I had a little sketch, somebody came and sent me a report, and I handed it over to a young man there. I did not know this man. It was something copied from the Saturday Evening Post".

Being asked if he had it, the witness answered: "Yes sir, I believe so. It is out of the ordinary is the reason I cut it out. I went up to the Library and copied it out of the Saturday Evening Post." And produced a piece of paper with writing on it. He further testified that the paper had nothing to do with the case; that no one had approached him about the case since he had been on the jury; that he had heard nothing about the case except from the witness stand. Witness was asked, by counsel for defendant, where was the man to whom he had handed the paper, and the following occurred:

"Answer: They were right over there. I don't think they are there now. He just wanted to see that.

"Question: Was there a lady sitting with the gentleman? Answer: Yes, sir, right sitting with the Gentleman.

"Question: Did he pass it or she pass it? Answer: Maybe he did, maybe she did; I don't know which one.

"Question: Did she pass you some character of a paper when she was sitting to the rear of you? Answer: If it was, it was that same thing, he just handed it to her and she handed it back to me. She did not read it, but there is nothing wrong about it.

"Question: She did hand you some paper? Answer: I believe she did. I wouldn't swear it.

"Question: That is your best recollection? Answer: One or the other of the two handed me that paper. There ain't nothing except a clipping out of the Saturday Evening Post.

"Question by Mr. Rives: Is that the only paper that has been handed to you? Answer: Yes, sir.

"Question by Mr. Rives: That you handed him? Answer: Yes sir.

"Question by Mr. Rives: It had nothing to do with this case at all? Answer: Not a bit.

"Question by the Court: Do you know them--either one of them? Answer: I know them only slightly."

H. H. Johns being called to the stand testified that he had never seen Juror McAdams before; that he was sitting right next to the jury and his wife was sitting next to him. He was asked: "There was a paper that was passed toward you, but you did not take it, but told him to take it? Answer: I says, 'I don't want that' * * * he handed me that paper, I took it in my hand and held it there and handed it back."

Witness further testified that the paper produced by Juror McAdams looked like the paper that was handed to witness; that he could hardly read it; that he did not read it, but looked at it and handed it back to McAdams; that he had never talked to McAdams about the case and did not know of any one else doing so; that the paper produced was the paper that had been handed to him; that he had not seen the inside of it, but there was an expense account, something about meals on it.

The paper produced by juror McAdams was admitted in evidence. The trial court overruled and denied defendant's motion to withdraw the case from the jury and declare a mistrial.

The paper admitted on the trial and certified here, is a rectangular piece of white paper some 3 inches wide by 11 inches long, folded once lengthwise. On one half of one side appears a poem, written in ink. Upon the other side, in pencil appears the following:

"Dinner Morrison .32¢

Saw Tom McA 10-10---38

Paid Price Drug Co. for

Medicine bal in full 1.50

Pocket, Oct. 10'38 1.64

______

3.14

Dinner above .32

______

3.46

Memo Spent & ct. 1.82."

A. H. Arrington, of Montgomery, W. L. Lee and Alto V. Lee, III, both of Dothan, and Evans Hinson, of Montgomery, for appellant.

Hill, Hill, Whiting & Rives, of Montgomery, for appellee.

THOMAS Justice.

The action was under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, for the death of plaintiff's husband and intestate.

The complaint was in two counts, ascribing the defects as "(1) said engine or locomotive was defective," and (2) "said ventilator door lever was defective."

There were no demurrers to the complaint. Defendant pleaded the general issue and each and every material allegation thereof (the two counts of complaint), and avers that the "same are untrue."

There were no special pleas of contributory negligence or assumption of risk.

The trial court refused to give the general affirmative charge requested by counsel for defendant. This action was warranted by the conflict in the evidence. The evidence showed that defendant was engaged in interstate commerce and plaintiff's intestate was so employed at the time of his injury and, while performing for defendant the duties of his employment, was injured by a break in defendant's ventilator door lever; that he had no duty to perform as to that door or the lever thereof as to maintenance.

The jury was warranted in finding that the lever was defective in several respects, as that it concentrated the strain on its narrowmost point and broke at such point; and that a safeguard to hold the lever when set should have been provided.

There was evidence to show to the reasonable satisfaction of the jury that said intestate's injuries as described proximately caused his death.

Certain well established rules are to be applied in such case. (1) Defendant owed plaintiff's intestate the duty and exercise of ordinary care and prudence to the end that the place in which his work was to be done or performed and the tools and appliances furnished should be safe for such workman to use in doing his work. Federal Employers' Liability Act § 1, 45 U.S.C.A. § 51; 2 Roberts, Federal...