Atlantic Coast Line R. Co. v. Taylor

• Decision Date: 04 March 1954
• Docket Number: 6 Div. 631
• Citation: 71 So.2d 27,260 Ala. 401
• Parties: ATLANTIC COAST LINE R. CO. v. TAYLOR.
• Court: Alabama Supreme Court

Page 27

71 So.2d 27

260 Ala. 401

ATLANTIC COAST LINE R. CO. v. TAYLOR.

6 Div. 631.

Supreme Court of Alabama.

March 4, 1954.

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

Harold M. Cook, Jackson, Rives, Pettus & Peterson, Birmingham, for appellee.

MERRILL, Justice.

This is an appeal from a judgment of the Circuit Court of the Tenth Judicial Circuit against the appellant and in favor of the appellee in the amount of $25,000, rendered in a suit by the appellee on behalf of herself as widow and the two minor children, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for damages for the death of her intestate, E. H. Taylor, employed by the appellant as a section laborer in the maintenance of its tracks.

The case was submitted to the jury on three counts of the complaint as amended, being counts designated as 'C', 'D' and 'E'. Each of the counts contained the usual averments of the employee relation, engagement in interstate commerce, the averment that the deceased was killed by being run over by a trailer car carrying materials and which became uncoupled from the motor car upon which the deceased had been riding in connection with his maintenance work. Count 'C' charged liability as for a negligent defect in the railroad trailer car as follows:

'Plaintiff avers that the said injuries and death of her said husband and intestate and the injuries and damages herein claimed of the defendant proximately resulted, in whole or in part, by reason of a defect or insufficiency, due to the negligence of the defendant, in its said railroad trailer car or in the appliance or equipment of said railroad trailer car.'

Count 'D' charged liability upon allegations of a negligent defect in the railroad motor car and was identical with Count 'C' except the word 'motor' replaced the word 'trailer.'

Count 'E' charged liability upon allegations of negligent failure to furnish a reasonably safe place to work, as follows:

'Plaintiff avers that the said injuries and death of her said husband and intestate and the injuries and damages herein claimed of the defendant proximately resulted, in whole or in part, from the negligence of the defendant, in negligently failing to exercise reasonable care in furnishing and maintaining for plaintiff's said husband and intestate a reasonably safe place to work.'

Demurrers being overruled, there was plea of general issue and contributory negligence in short by consent. After verdict and judgment, appellant's motion for new trial was overruled and appellant duly appealed.

The deceased Taylor had been employed as a member of appellant's section crew at Pelham, Shelby County, Alabama, continuously from January 23, 1952, until the fatal accident April 29, 1952, although he had had longer experience in that kind of work previously in working as a section hand for two other railroads.

The accident occurred shortly after the crew resumed work after lunch. The immediate operation was to distribute cross ties for use on the main line not far from where the crew stopped for lunch. The ties, about 30, and various tools, were loaded on a four-wheeled flat trailer car, with a water keg on top of them near the front; the trailer car was coupled to a regular motor car operated by the Section Foreman with the various members of the crew who were not otherwise engaged, seated on seat boards around the front and sides of the motor car.

After the ties and tools were loaded on the trailer car after lunch time and the movement ready to begin, the deceased Taylor, himself, securely and properly coupled the trailer car to the motor car while both were on the pass track. Thus coupled the cars moved slowly out of the switch onto the main line with Taylor riding on the left front corner of the motor car, the Section Foreman on about the right front corner operating it, the witness Arthur Hudson to the right rear, the witness James Marcus on the right front to the right of the Section Foreman and the other employees seated on the seat boards. The cars had gone only a few hundred feet, proceeding smoothly and slowly, about 6 to 8 miles per hour or a 'good trot', when the motor car 'jerked like it was loose'. The Section Foreman immediately applied the brakes and looked to the rear, as did the other employees. It was then seen that the trailer car was uncoupled from the motor car and a few feet behind it, and Taylor was down on the tracks between the rails being 'doubled up' under the front of the trailer car. The motor car was stopped quickly and the detached trailer derailed its front wheels in running over Taylor and stopped with Taylor's body lying between the rails beneath it. Taylor was severely injured but not unconscious, was carried from the scene by the same push car a few miles to a crossing, transferred to an automobile and taken on to a doctor who pronounced him dead on arrival at his office about one hour after the accident.

No one saw how Taylor fell from the motor car or how he got between the cars nor did anyone see the cars become uncoupled or know how they became uncoupled.

Shortly before the accident Taylor, who had been seated safely on the left front corner of the motor car, got up and walked toward the rear past Arthur Hudson stating that he was going to get a drink of water. The Section Foreman was looking ahead, operating the motor car and was not aware of Taylor's action. Neither Hudson nor anyone else saw Taylor as he continued to the rear of the motor car and to the coupling between the motor car and the trailer car.

The type of coupling device then and theretofore used was a 'homemade' steel rod about twenty inches in length attached to the rear sill of the motor car by a wye bracket and coupling pin with a hook at the other end to engage in the eye on the end of the coupling bar of the trailer. This coupling rod, made by the crew of which Taylor was a member, had been in similar use for several months, replacing a similar one which was worn, and had never become disengaged while in use on any occasion. According to plaintiff's witness Marcus, after properly being coupled and engaged as Taylor had done on this occasion, the coupling rod could be disengaged and uncoupled only by pulling the rod up by hand and so disengaging the hook.

The coupling rod in question was in sound and efficient condition both before and after the accident and was not broken or affected by it and there was no claim that it was broken in the accident.

The witnesses agreed that the coupling rod was attached to the rear sill of the motor car at a point higher than the place of engaging the hook in the eye of the draw bar of the trailer. Plaintiff's testimony placed this difference at from six to twelve inches. Later in the trial defendant showed that the coupling rod was 7/8 inches thick, 20 inches long, with a 7 inch hook on the end for engaging in the eye on the trailer and that the eye on the trailer was 7 3/8 inches lower than the point where the rod was attached to the motor car.

Appellant's assignments of error 3, 4, 5 and 6 contend that the court erred in refusing to give peremptory charges as to the whole case and as to each of the three counts. The requested charge under assignment No. 3 was: '1. The court charges the jury that under the evidence in this case your verdict must be for the defendant.'

The requested charge under assignment of error 4 was: '5. The court charges the jury that under the evidence in this case you cannot return a verdict for the plaintiff under Count 'C' of the complaint.' The charges under assignments 5 and 6 were identical with charge No. 5 except the letters 'D' and 'B' were respectively substituted for the letter 'C'.

In our recent case of Atlanta & St. Andrews Bay Ry. Co. v. Burnett, 259 Ala. 688, 68 So.2d 726, 731, we said:

'* * * Without doubt, however, actionable negligence may be established by circumstantial evidence. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. Furthermore, as in this case, where the affirmative charge was refused the defendant, the entire evidence must be viewed in its most favorable aspect to the plaintiff and where this is done and a reasonable inference may be drawn adverse to the party requesting the affirmative charge, such charge is properly refused. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224; Alabama...