BIRMINGHAM BELT R. CO. v. Dunlap

• Decision Date: 24 May 1932
• Docket Number: No. 6466.,6466.
• Parties: BIRMINGHAM BELT R. CO. v. DUNLAP.
• Court: U.S. Court of Appeals — Fifth Circuit

58 F.2d 951 (1932)

BIRMINGHAM BELT R. CO. v. DUNLAP.

No. 6466.

Circuit Court of Appeals, Fifth Circuit.

May 24, 1932.

Jelks H. Cabaniss, of Birmingham, Ala., for appellant.

John W. Altman and W. C. Dalrymple, both of Birmingham, Ala. (Fred G. Koenig and Walter S. Smith, both of Birmingham, Ala., of counsel), for appellee.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

BRYAN, Circuit Judge.

This is an action under the Federal Employers' Liability Act (45 USCA §§ 51-59), in which, in the court below, plaintiff recovered judgment against the defendant railroad company for damages for a personal injury which he received while employed as a switchman and member of a switch engine crew in a railroad yard at Birmingham.

The case proceeded to trial on a complaint which alleged simply that plaintiff's injuries resulted as a "proximate result of a defect or insufficiency, due to the negligence of the defendant, in the cars, engine, appliances, machinery, tracks, road-bed or other equipment of the defendant"; and a plea of the general issue, pleaded in short by consent, with leave to the defendant to give in evidence any matter which, if well pleaded, would be admissible in defense of the action, and with like leave to the plaintiff to give in evidence any matter which, if well pleaded, would be admissible in rebuttal. This method of pleading is in accordance with the Alabama practice. Evidence for the plaintiff was to the effect that the injury occurred after the switch engine had coupled onto a car which was destined to move in intrastate commerce and was on its way to pick up another car which was destined to move in interstate commerce; the intention being to place both cars on a transfer track, where each would be made up into a train for transportation to its destination. During the course of plaintiff's testimony he said that, after he was thrown from the top of the car by reason of a derailment, and while he was under the car, he observed that frog points at an adjacent switch were worn, that a rail was broken, and that the roadbed had rotten ties in it; and, further, that he had noticed these defective conditions before the occasion of his injury.

The assignments are aimed at the refusal of the court to give to the jury defendant's request to charge that the verdict should be against the plaintiff and in favor of the defendant. In support of these assignments it is argued, first, that plaintiff's evidence disclosed no right of action under the Federal Employers' Liability Act, and, secondly, that, according to his own...