Atlantic Coast Line R. Co. v. Russell

• Decision Date: 20 January 1927
• Docket Number: 3 Div. 792
• Citation: 215 Ala. 600,111 So. 753
• Parties: ATLANTIC COAST LINE R. CO. v. RUSSELL.
• Court: Alabama Supreme Court

111 So. 753

215 Ala. 600

ATLANTIC COAST LINE R. CO. v. RUSSELL.

3 Div. 792

Supreme Court of Alabama

January 20, 1927

Rehearing Denied March 31, 1927

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for damages by Bodie C. Russell against the Atlantic Coast Line Railroad Company. From a Judgment for plaintiff for $12,000, defendant appeals. Affirmed.

Arrington & Arrington, of Montgomery, for appellant.

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

BOULDIN J.

The suit is for personal injuries, under the federal Employers' Liability Act (U.S.Comp.St. §§ 8657-8665).

The questions presented on appeal arise upon the denial of defendant's motion for a new trial. The grounds of the motion were that the verdict was not supported by the evidence and was excessive.

That the defendant was a common carrier by railroad engaged in interstate commerce, and that the plaintiff was at the time an employee engaged in such commerce, are admitted facts.

The injury resulted from a collision of moving cars with a locomotive in the switchyard of the defendant in the city of Montgomery. The yards contained a lead track with several spur tracks upon which outgoing trains were made up. The plaintiff was foreman of the switch engine. He had made up a train, known as "2d Extra 212," which was standing with engine attached on track No. 5. Plaintiff directed his switch crew to kick three detached cars along the lead track toward track No. 1, passing the switch point of track No. 5. As these cars approached, the train 212 began to move out of track No. 5 toward the lead track. The plaintiff, seeing a collision, commonly called a side-swipe, was imminent hurriedly threw the switch to turn the moving cars into track No. 5, so as to meet the locomotive head-on, and mounted the cars to apply the brakes and stop or check their movement, and thus prevent a collision or reduce its violence. While applying the brakes, the collision occurred, throwing plaintiff from the top of the car, falling on the pilot of the engine, and resulting in his injury. No other injury ensued.

The evidence warranted a finding by the jury that a side-swipe is more dangerous to life and property than a head-on collision; that a side-swipe was or reasonably appeared to be imminent; that the act of plaintiff in mounting the cars and putting himself in peril was not so manifestly dangerous or useless as to constitute recklessness on the part of a man of ordinary prudence acting in emergency. In view of the general duty to conserve the property of the employer, as well as the safety of the employees, and the rule of the company to like effect, the evidence amply supported a finding by the jury of no assumption of risk by plaintiff in placing himself in a position of peril on the moving cars. Atlantic Coast Line R. Co. v. Jeffcoat, 214 Ala. 317, 107 So. 456.

The question of major importance in the case is that of negligence vel non on the part of the trainmen of 212 as a proximate cause of the injury. A full review of the evidence of the numerous witnesses bearing upon this issue would be inappropriate. A mere summary disclosing the reasons for our holding will suffice.

It appears the engine of second extra 212, somewhat delayed by first extra 212, had moved into track 5, connected with its train of 20 to 25 cars, pulled up and stopped some 10 to 15 feet in the clear of the lead track. Upon signal to apply brakes, the engineer blew one blast of the whistle, the signal that brakes were applied for inspection; after inspection and upon signal from the inspector to the fireman, brakes were released, two blasts of the whistle blew, and the train moved.

Passing over some questions as to the time the train should remain on the switch track, and of proper inspection after release of brakes, we may say the two blasts of the whistle were notice to the switchman that the train was ready to go, that it had the right of way, and that it was the duty of the switch crew to clear the lead track. The inquiry then is: How and under what precautions should the train move? One rule is that while the engine is in the clear the enginemen must see that the switch is properly set for the lead track.

There was evidence, somewhat controverted, that the brakeman sent ahead to line up switches was to pilot the train out, and the train should await a "come on" signal from him; other evidence rather strongly controverted that the trainman or pilot should await a signal from the switch foreman, this plaintiff, before proceeding.

The evidence, fully considered on both sides, clearly supports a finding that the train was started on a signal from...