Birmingham Belt R. Co. v. Bennett

• Decision Date: 06 October 1932
• Docket Number: 6 Div. 84.
• Citation: 146 So. 265,226 Ala. 185
• Parties: BIRMINGHAM BELT R. CO. v. BENNETT.
• Court: Alabama Supreme Court

146 So. 265

226 Ala. 185

BIRMINGHAM BELT R. CO. v. BENNETT.

6 Div. 84.

Supreme Court of Alabama

October 6, 1932

Rehearing Denied March 2, 1933.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Action for wrongful death by Eileen Bennett, as administratrix of the estate of George Bennett, deceased, against the Birmingham Belt Railroad Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Cabaniss & Johnston and L. D. Gardner, Jr., all of Birmingham, for appellant.

W. C Dalrymple and Hugo L. Black, both of Birmingham, for appellee.

KNIGHT J.

This action was brought by Mrs. Eileen Bennett, as administratrix of the estate of George Bennett, deceased, under the Federal Employers' Liability Act (45 USCA §§ 51-59) for the death of the said George Bennett.

The defendant, in the action, the Birmingham Belt Railroad Company, at the time the plaintiff's intestate received his fatal injuries, was engaged in interstate commerce, and the said Bennett was an employee of the defendant, and, as such, was engaged in placing a box car, which was moving in interstate commerce over defendant's line of railway, on one of its side tracks. This car was shipped from Niagara Falls, N. Y., consigned to the Birmingham Paper Company, at Birmingham, Ala., and the defendant was the delivering carrier of this shipment. Upon the trial of the cause, the defendant admitted that the car in question came from Niagara Falls, N. Y., consigned to the Birmingham Paper Company, and that the defendant was engaged in interstate and intrastate commerce.

It is quite certain from the pleadings and proof that, at the time the plaintiff's intestate received his fatal injuries the defendant was a common carrier, engaged in interstate commerce, and that plaintiff's intestate was actually engaged in the performance of his duties as a railroad switchman for defendant in and about its said interstate business.

The Birmingham Belt Railroad Company maintained a line of railway in Birmingham, Ala., on the 30th day of December, 1930, and on that day had a spur track along Avenue E in said city, between Twenty-First and Twenty-Second streets. This spur track ran along the north side of the concrete platform of the Birmingham Paper Company's plant, and, in making deliveries of shipment to said paper company, the defendant used its said spur track. A switching crew employed by defendant regularly placed cars of freight consigned to the Birmingham Paper Company alongside this platform. This platform is the property of the paper company. Among other purposes, this platform was used at the time for loading and unloading freight shipments. The length of this spur track is approximately three hundred and thirty-eight feet. After leaving the main line, this spur track curves to the south, until it comes in line with the above-mentioned platform, and then it runs along the north side of the platform to the end of the same. Near the east end of the platform there was, and had been for a long while, a clearance warning signal, reading, "Clearance warning, these buildings will not clear a man on side of cars."

From a point approximately ten to twelve feet east of the concrete steps to the platform westward, this spur track is so close to the platform that there is not sufficient clearance for a switchman to stand between the platform and a moving engine and tender, equipped with rerailers attached to sides of tender. But from the same point twelve or fifteen feet east of the concrete steps, eastward, a man standing between the platform and a moving engine and tender, equipped with rerailers, would be at all times in the clear.

It appears without dispute that for a number of years next before the date of the accident plaintiff's intestate had been employed by the defendant as a switchman, and he was an experienced hand at the business. Theretofore this man had been employed by other railroad companies in the same line of work. The testimony shows that the deceased had worked for quite a while in switching cars on this same side track.

The engine was what is known as the No. 1200 type-a large engine-and attached to the sides of the tender were rerailers; and these rerailers extended out about three inches on each side of the tender, thus giving an additional width to the tender of about three inches on each side. The deceased was familiar with the location of the grounds, track, and platform, as he had been constantly engaged in that particular business for quite a while. On the 30th day of December, 1930, the crew, of which the deceased was a member, were directed to place this car from Niagara Falls on the spur track along the platform of the Birmingham Paper Company, for unloading purposes. The deceased was working on the night shift, and about 4:10 a. m. the engineer, with the deceased and one Reeser, who was the foreman of the switching crew, undertook to place the car near the west end of the paper company's plant. It was then dark. The engine, with tender and car attached, backed down this spur track, and, while backing along the spur track, going westward, the deceased was riding on the west end of the box car, and the foreman of the switching crew was on the east end. Both Bennett and the foreman had lanterns, and both were on the south side of the car, which was the side the engineer was on. The foreman testified on direct examination in part as follows: "Mr. Bennett got off from the opposite end of the car from me and got on the ground. It was dark. I could not tell exactly where he had gotten off with reference to that platform. He stayed on the ground there as I went by him on the car. I had a lantern. I could signal the engineer to start or stop, or anything I wanted, and he would have to obey whatever signals I gave him. As I passed Bennett, I was looking toward 21st Street to spot the car. I did not know, or have any reason to think, he wasn't in the clear until after I heard him holler."

Further on, this witness testified: "I knew he was where he was, but did not know how close he was. I knew it was a dangerous place because we had been talking about it up at 32nd Street. I knew the further it went the tighter it got. I knew if anything hit him it was liable to knock him down and kill him. * * * I knew if I gave a signal the engineer would stop. I went on by and never gave a signal until he hollered. I saw him just before I went by him. I saw him when he dropped off. His lantern was in his hand, but I don't know whether it was down by his side, or up high, or down low. I could not tell. * * * As I went by I was about my length from him. My head was about my length above him. Yes, he was in the performance of his duties. He flagged the crossing."

Byrd, the engineer, while on the stand, testified: "We were backing in there very slow, about like a man would walk; maybe two miles an hour, and maybe not so much, expecting to get the stop signal at any time. It was dark. It was customary for the man to get off somewhere east of those steps. There is no designated point. There is a point in there when the men are perfectly safe. * * * Then, when Bennett, who was riding on the front end got off, he was about sixty feet from me. That was about 4:10 in the morning and dark. Bennett had a lantern. If he had wanted me to stop, he would have given a stop signal, which is given across the track. If he had given this signal, I would have stopped and could have stopped in two feet. I did not know prior to the time Bennett cried out and hollered that he had gotten off at a place where he wasn't clear between the engine and the side of the wall. Until Bennett hollered out, I did not know that he was in a place that the engine would not clear him-the engine, or the tender, either one, or the car. I did not know prior to the time Mr. Bennett cried out or hollered that he was in a position where the engine or tender wouldn't clear him where he was standing. I had been on that night shift several months. I don't remember just how long. It was the usual and customary practice for the switchman going in there to get off along about the point where Bennett got off that night. It was customary for them to get off along about where he did and then stand there until the car was spotted and then cut loose."

On cross-examination this witness testified: "I would say Mr. Bennett was about twelve feet east of the concrete steps when I saw him on the ground. When he got down I don't know just what his clearance was. It was dark and I couldn't see anything. I knew about where he was. I am not familiar with the clearance enough to know just where he got off. I saw him step off the westerly end of the moving car and stand between it and the platform. * * * I knew he was over on the side where he didn't have any way to climb to the top. I saw him get off and I saw him at a point ten or twelve feet east of the concrete steps. I saw his light where he got off. When he got off he was about sixty feet from me. I knew where he was and knew he couldn't get up on top. I had been traveling over there some time and I knew that there was a pipe there that projected out from the side of the wall. I knew that pipe projected out about one foot, and I knew that ten or twelve feet was between the pipe and the concrete steps. I saw him at the point he got off and knew at the time I could stop that car within two or three feet. I did not know that the engine was wider than the car. I was not positive that the place, where the rerailing frogs were hanging down was wider than the car until we backed west of the steps. * * * I knew that if we kept on going down there with that engine that ultimately this rerailing frog would come down to where he was and I could have...