Atlantic Coast Line R. Co. v. Barnes

• Citation: 75 So.2d 91,261 Ala. 496
• Decision Date: 07 October 1954
• Docket Number: 6 Div. 406
• Parties: ATLANTIC COAST LINE RAILROAD CO. v. William W. BARNES.
• Court: Supreme Court of Alabama

Page 91

75 So.2d 91

261 Ala. 496

ATLANTIC COAST LINE RAILROAD CO. v. William W. BARNES.

6 Div. 406.

Supreme Court of Alabama.

Oct. 7, 1954.

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

Jackson, Rives, Pettus & Peterson, Birmingham, for appellee.

PER CURIAM.

This is an appeal by the Atlantic Coast Line Railroad Company from a judgment awarding damages to appellee for personal injuries.

Appellee was the conductor on a freight train of appellant running from Elyton, Alabama, to Manchester, Georgia. It was therefore engaged in interstate commerce, and appellee as an employee of appellant was injured in the course of that employment and growing out of it. His claim for damages is therefore controlled by the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The train consisted of sixty-two cars and the caboose and was drawn by two diesel engines. The injury occurred while the train was passing through a rough mountainous section of Alabama, having immediately passed out of Shelby County. It was passing through an area in which the trainmen had orders to move slowly and watch out for rocks on the track. The train left Elyton about four o'clock in the afternoon on March 16, 1949. After it left Bessemer, appellee, Barnes, and the flagman, Pouncey, were riding in the cupola of the caboose. Pouncey was engaged in writing reports. Barnes was at his place in the cupola looking out of the window. There was a platform with benches on either side upon which to sit in the cupola. In sitting there the two men were engaged in the performance of service for the appellant. The weather was cold and it was getting dark. Barnes testified that he got down and 'got an old rag and opened the stove door and stirred up the fire, * * * and went to the rear and took down one marker and brought it inside to light, and set it down on the floor, wiped off the lens with a rag * * *; got a match and prepared to stoop over in a braced position and prepared to light the marker * * * when there was a sudden and unusual hard jerk, which jerked me back * * * in that stooped over position against the corner of the door; hit at the lower part of my spine,' and before he could brace or grab anything, the caboose 'swerved' almost as if it had hit a rock wall, and he went forward hitting on his knee and hand on the floor. There was in the caboose a 'pot bellied' stove with a 'top eye'. This 'top eye' was jarred off the top of the stove. It was made of cast iron and was about twelve inches in diameter and weighed about seven pounds. It was said to be 'counter sunk place' before it was jarred off.

Appellee testified that he first became qualified as a railroad freight conductor in about 1923, and had about two years 'switching'. He was then asked, upon the basis of his experience of about eleven years and knowledge of the conditions then and there existing, whether the jerk on that occasion was an unusual one,--to which objection was overruled and exception reserved, and he said that it was 'an unusual jerk', and with the same objection overruled and exception reserved as to each separately, answered it was 'an extraordinary jerk'; that 'it was not necessary' in his opinion: that the cause of such a jerk was 'what we call an excessive slack action'. He explained 'running in of slack as when the cars take up all the play or slack in the drawhead, as when going downgrade'. When it all gets in, that is 'bunch slack'. 'Running out of slack' is the opposite of 'running in'. The entire train was equipped with air-brakes operated by the engineer. In the opinion of appellee, in the light of his experience, the engineer could control the extent of the slack action in that train; and in his opinion the improper use of the air-brakes, the improper use of the throttle or improper use of both combined cause the excessive slack action on that occasion. He also testified 'there could have been some defects in the air-brake system on the train', such as were called 'bad triples or leaking train lines', that could have caused it. That is a part of the braking system. 'A break in the air line throws the entire train into emergency'. No such defect was shown to exist.

He further testified that he suffered pain from the 'lick'. He lit and hung up the markers, but was suffering pain and got 'fainty and nauseated': his kidneys and bowels wanted to act and he had severe pain in the lower part of his spine. He then crawled up on the left side of the cupola and began vomiting out of the window. He frequently went back to relieve his bladder--his kidneys were giving him much pain, and that he stayed in the cab until they reached Lineville where they took on a colored man as a 'dead head' with a permit. He was a brakeman for the Louisville and Nashville Railroad Company and helped the flagman. Appellee was lying in the cupola of the cab and was suffering much pain when they stopped at LaGrange, Georgia, where they had about twelve cars to deliver to another railroad, and switching was to be done in which as conductor he should participate, so he got the 'dead head' to do it. The train went on to Manchester. The accident reports were there made out and signed by Barnes, the engineer, fireman and brakeman, and then he went home. They verified Barnes' statement in the reports. On the next day he went to the hospital at Waycross upon the advice of the company doctor. At the hospital he was treated by other company doctors. He was confined there from March 18th until April 4th or 5th. They made x-rays and administered internal medicine and injections in the spine,--during all of which time he suffered much pain. After leaving the hospital he went back to Manchester and was under the care of the company doctor there, Dr. Johnson. There was a fracture of the coccyx, which was massaged and treated, and which was very painful. He had a vacation coming up and taking advantage of it he was off until April 24th. Around April 18th he had bid in a job as baggage master or flagman on a passenger train, but had sufficient seniority to go back on his freight job, to which he did not go because he claimed the lower part of his spine was passing blood and he was suffering pain; and although he went to work on the passenger train he was not physically able to do the job. The doctors testified that Barnes had a fracture of the coccyx, the extreme end of the spinal column. Dr. Johnson testified that he treated Barnes from April 5th to April 17th, 1949, when, in his opinion, he was feeling well enough to go back to work. He was x-rayed again in November 1950 and in June 1951, and the fracture was so completely healed that there was no evidence of it whatever on the x-ray pictures. He did not have sufficient seniority to get on the conductors' board in freight service. He had served as a conductor only in emergency, but had been working regularly as a freight flagman. By the exercise of his seniority, he bid for and obtained the job of baggage master or flagman in the passenger service between Manchester and Birmingham because the work was not so hard. He lost time from that work because he was having trouble with the lower part of his spine, from September 6, 1949 to October 23, 1949, and from October 15, 1950 to November 29, 1950, in addition to the time from March 17, 1949 to April 18, 1949. All together, he testified, he lost $1,653.34 on that account, and that there was less pay for a passenger baggage master than a freight flagman by $50 to $60 a month. He proved that his expectancy was approximately nineteen years and that the present value of a monthly income of $50 for nineteen years at two and one-half percent is $9,000; at four percent is $8,000; and at five and one-half percent is $7,000.

There was evidence that in 1948, before the accident, appellee had 'psychoneurosis anxiety state'; and that he had that trouble after the accident. There was a difference of opinion among the doctors as to whether the accident had anything to do with that neurotic condition. He told a doctor that just worry and responsibility for the trains caused him to want to change his work. One of the doctors testified that on June 20, 1951, he had a long talk with appellee who said he was happy in his work as flagman (baggage master), and that he was emotionally upset as long as he was a conductor. That doctor also testified that his injury had nothing to do with that...