Birmingham Southern R. Co. v. Ball

• Decision Date: 12 January 1961
• Docket Number: 6 Div. 590
• Citation: 271 Ala. 563,126 So.2d 206
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM SOUTHERN RAILROAD COMPANY v. Handy BALL.

Page 206

126 So.2d 206

271 Ala. 563

BIRMINGHAM SOUTHERN RAILROAD COMPANY v. Handy BALL.

6 Div. 590.

Supreme Court of Alabama.

Jan. 12, 1961.

Moore, Thomas, Taliaferro, Forman & Burr, Birmingham, for appellant.

Clifford Emond, Jr., Birmingham, for appellee.

The following requested charge was refused to defendant:

'12. The Court charges the Jury, that, if you are reasonably satisfied from the evidence in this case that the injuries received by the plaintiff were proximately caused by his own ngligence, and that such negligence on his part was the sole and proximate cause of the injuries received by the plaintiff, then you cannot find for the plaintiff in this case.'

MERRILL, Justice.

This is an appeal from a judgment for $1500 in a suit brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. A motion for a new trial was overruled.

The single count which went to the jury charged that while appellee 'was acting within the line and scope of his employment by defendant, in carrying certain air and/or water hose of defendant, he was caused to be struck on the knee by said air and/or water hose, and was thereby caused to be injured.' It was alleged that plaintiff's injuries resulted from the negligence of the defendant or by reason of a defect or insufficiency in its equipment, etc.

It is uncontradicted that the plaintiff, a laborer in the performance of his duties, was injured as a result of being struck on the knee by the end of an air hose which was coiled up and looped around his shoulder and arm; that the end of the air hose flopped over and its metal connection struck him on the knee.

The record shows that this was the customary manner for the hoses to be carried and that the defendant had no rule which required employees to tie up the hoses before carrying them. The defendant did not provide the employees with anything to tie up the hoses nor did they furnish a wagon on which to carry the hoses.

Plaintiff was forty-eight years old at the time of his trial and had worked for the defendant for ten years, and for seven years, it had been part of his job to pick up the air and/or water hose left on or near the tracks by other employees, and when he was hurt, he was doing the same work in the same manner as he had been doing for at least five years.

Appellant first argues that it was entitled both to the general charge without hypothesis and with hypothesis. It is argued that there was no negligence on the part of appellant because there was no duty imposed on the defendant either of (1) promulgating the rule requiring that an air hose, such as the one carried by the plaintiff, be tied up before being carried by an employee, or (2) providing material of some kind with which an employee such as plaintiff could tie up such an air hose before carrying it.

It is true, as argued by appellant, that in F.E.L.A. cases we are bound by Federal decisional law, and the decisions of the Federal Supreme Court say that the act does not make the employer the insurer of the safety of their employees while they are on duty.

Appellant urges that there is no evidence of negligence and that it was entitled to the affirmative charge. We have held that the affirmative charge is properly given in F.E.L.A. cases only when there is a complete absence of probative facts to support plaintiff's claim of negligence on the part of the railroad. Louisville & Nashville Railroad Co. v. Cooke, 267 Ala. 424, 103 So.2d 791, and cases there cited.

The entire evidence must be viewed in its most favorable aspect to the appellee, 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. Louisville & Nashville Railroad Co. v. McElveen, 270 Ala. 600, 120 So.2d 884; Atlantic Coast Line Railroad Co. v. Taylor, 260 Ala. 401, 71 So.2d 27.

Some of the evidence favorable to the appellee was: the ends of the hoses were prone to flop down while being carried, and when they struck the leg, the blow could be painful; it would be easier to handle the hose if it were tied and, if tied, the end would not flop; it had been suggested at safety meetings that 'the hoses be tied up so they would be easy to get out and bring in--and keep them from falling down.' Appellant, disregarding this knowledge, failed to promulgate any rule requiring that the hoses he tied, failed to provide its employees with anything with which to tie the hoses, and failed to furnish anything on which the hoses could be carried, forcing the employees to carry them on their shoulders or in their arms. 'These were probative facts from which the jury could find that respondent (appellant) was or should have been aware of conditions which created a likelihood that petitioner, in performing the duties required of him, would suffer just such an injury as he did.' Rogers v. Missouri Pacific Rwy. Co., 352 U.S. 500, 77 S.Ct. 443, 447, 1 L.Ed.2d 493. The Rogers case is quoted in Louisville & Nashville Railroad Co. v. Cooke, 267 Ala. 424, 103 So.2d 791, 794, as follows:

"Under this statute [F.E.L.A.] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are south. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is...