Atlantic Coast Line R. Co. v. Dunivant

• Citation: 265 Ala. 420,91 So.2d 670
• Decision Date: 29 November 1956
• Docket Number: 6 Div. 789
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY v. A. M. DUNIVANT.
• Court: Alabama Supreme Court

Page 670

91 So.2d 670

265 Ala. 420

ATLANTIC COAST LINE RAILROAD COMPANY v. A. M. DUNIVANT.

6 Div. 789.

Supreme Court of Alabama.

Nov. 29, 1956.

Rehearing Denied Jan. 10, 1957.

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

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

LAWSON, Justice.

A. M. Dunivant brought suit in the circuit court of Jefferson County against Atlantic Coast Line Railroad Company to recover damages for personal injuries alleged to have been sustained by him while he was in the employ of the defendant as a freight train conductor and while engaged in the line of duty handling interstate commerce.

The original complaint consisted of four counts. Count 1 sought to charge liability on averments that the condition of the locomotive or appurtenances thereto violated the Boiler Inspection Act, 45 U.S.C.A. § 23. In Counts 2 and 3 plaintiff based his right to recover upon an alleged violation of the Safety Appliance Act, 45 U.S.C.A. § 2. Count 4 averred negligence generally in the language of the Federal Employers' Liability Act, 45 U.S.C.A. § 51. The defendant's demurrer to the complaint and to the several counts thereof being overruled, the defendant pleaded the general issue in short by consent in the usual form.

The plaintiff, at the conclusion of his evidence, withdrew Counts 1 and 4 and the cause went to the jury on Counts 2 and 3 and the defendant's plea of the general issue in short by consent. There was jury verdict in favor of the plaintiff in the amount of $12,500 and costs. Judgment was in accord with the verdict. The defendant's motion for a new trial being overruled, it appealed to this court.

The defendant argues that the judgment appealed from should be reversed because of four alleged errors: (1) The court erred in overruling its demurrers to Counts 2 and 3 of the complaint; (2) the court erred in excluding certain evidence offered by the defendant; (3) the court erred in refusing to give affirmative instructions requested by the defendant as to each of the counts on which the cause went to the jury; (4) the court erred in overruling the grounds of the motion for a new trial which take the point that the verdict was contrary to the great weight of the evidence.

The assignments of error which challenge the correctness of the judgment overruling the demurrer to Counts 2 and 3 are argued in brief of appellant in such a general way as to leave us uncertain as to the exact grounds of the demurrer which appellant considers to have been well taken. The rule is that when complaint is made of the trial court's action in overruling a demurrer, we consider only those grounds adequately argued in brief filed on behalf of the appellant. Southern Ry. Co. v. Sanford, 262 Ala. 5, 76 So.2d 164. However, we will consider the grounds of the demurrer which we understand the argument made in brief to embrace.

One of the grounds of the demurrer takes the point that Counts 2 and 3 are defective in that they fail to aver that negligence of the defendant was the proximate cause, in whole or in part, of the plaintiff's alleged injuries. While that ground is not specifically mentioned in argument made in appellant's brief, we assume it is relied upon since in its brief appellant quotes from our case of Alabama Great Southern R. Co. v. Smith, 256 Ala. 220, 54 So.2d 453, 458, placing emphasis on the following statement: 'In so doing, the Federal Employers' Liability Act furnishes the vehicle so the complaint [violation of the Federal Safety Appliance Act or of the Federal Boiler Inspection Act] must allege negligence as there specified. Although it is so alleged, proof of a violation of either act complies with plaintiff's duty to prove negligence as alleged.'

Neither of the counts which went to the jury charges defendant with negligence, hence we feel that the language of the Smith case, supra, last quoted above, although not necessary to a decision in that case, must be considered. After further study we are of the opinion that a count seeking damages because of the violation of the Federal Safety Appliance Act need not contain the formal charge of negligence.

Cases of this kind are governed by acts of Congress and by federal decisional law. Brown v. Western Ry. of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100; Jacobson v. New York, N. H. & H. R. Co., 1 Cir., 206 F.2d 153.

Although relief in Safety Appliance violation cases is pursued under the Federal Employers' Liability Act, Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874; Alabama Great Southern R. Co. v. United States of America, 5 Cir., 233 F.2d 520, which is basically a form of action predicated upon negligence, the violation of the Safety Appliance Act being itself an actionable wrong in no way dependent upon negligence, Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236; O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187; Affolder v. New York, C. & St. L. R. Co., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683, there is no necessity for the complaint in a Safety Appliance violation case to contain a formal allegation of negligence. In the O'Donnell case, supra [338 U.S. 384, 70 S.Ct. 205], the Supreme Court of the United States admonished the profession to recognize the distinction which that court had made previously between federal Safety Appliance violation cases and negligence cases, saying in part as follows:

'Pleadings will serve the purpose of sharpening and limiting the issues only if claims based on negligence are set forth separately from those based on violation of the appliance acts.'

In Byler v. Wabash R. Co., 8 Cir., 196 F.2d 9, 11, it was said:

'Where liability for injury on the part of a common carrier engaged in interstate commerce is predicated on its failure to comply with the requirements of the Safety Appliance Act, it is not necessary to allege or prove negligence on behalf of the carrier other than failure to comply with the Act. Compliance with the Act is an absolute duty and any failure in this regard resulting in injury to an employee gives rise to liability. The statutory duty can not be satisfied by the exercise of reasonable care but if it appears that the appliance was defective or out of repair, or failed properly to function at the time the injuries were received, no importance can be given to the question of whether or not question?" And, as indicated above, in on the part of the carrier.' (Emphasis supplied.) the railroad could show that the knuckles 298; Atlantic Coast Line R. Co. v. Shields, 5 Cir., 220 F.2d 242.

In some cases it has been said that a formal allegation of negligence should be disregarded as surplusage where the complaint charges a violation of the federal Safety Appliance Act. Colwell v. St. Louis-S. Coast Line R. Co. v. Brown, 93 Ga.App. and cases cited.

We hold that Counts 2 and 3 are not demurrable because of the absence of formal allegations of negligence and that the trial court did not err in overruling the ground of the demurrer which took that point.

Count 2, after alleging that the defendant was engaged in business as a common carrier by railroad in interstate commerce and the employment of the plaintiff by the defendant as a freight conductor in such commerce, alleges that on a certain date at a named place plaintiff, while engaged in and about his work as a freight conductor for the defendant, was injured when his left heel was caught between the knuckle of the coupler on one of defendant's engines and the knuckle of the coupler on one of its cars. After describing the injury Bay Ry. Co. v. Burnett, 259 Ala. 688, 68 2 that such injury 'proximately resulted, in whole or in part, from the defendant hauling or permitting to be hauled or used on its line a railroad car, equipped with a coupler that did not couple automatically on impact as required by the Federal Safety Appliance Act, generally known as the Automatic Coupling Act, Title 45 U.S.C.A. § 2, an act of the Congress of the United States enacted for the protection and benefit of employees of common carriers by railroad engaged in interstate commerce.'

Count 3 is in the identical language of Count 2 except that it charges the defendant with the operation of an engine equipped with a coupler that did not couple automatically on impact, whereas Count 2 relates to the operation of a car with such a coupler.

We understand...