Camp v. Atlantic Coast Line R. Co.

• Decision Date: 24 June 1948
• Docket Number: 6 Div. 680.
• Citation: 251 Ala. 184,36 So.2d 331
• Parties: CAMP v. ATLANTIC COAST LINE R. CO.
• Court: Alabama Supreme Court

36 So.2d 331

251 Ala. 184

CAMP v. ATLANTIC COAST LINE R. CO.

6 Div. 680.

Supreme Court of Alabama

June 24, 1948

Rehearing Denied July 31, 1948.

Taylor Higgins, Koenig & Windham and J. Howard Perdue Jr., all of Birmingham, for appellant.

Graham Bibb, Wingo & Foster, of Birmingham, for appellee.

FOSTER, Justice.

The question on this appeal is whether we should reverse the trial court in setting aside a judgment for plaintiff, who is the appellant, complaining of such ruling.

Plaintiff's intestate, H. L. Camp, was killed on April 13, 1946, while serving defendant as switchman at about 8:30 p. m. The case was tried on counts 1 and A. Count 1 was based on the claim that Camp came to his death by the negligence of the servants, agents or employees of defendant, and is framed to apply to section 51, Title 45 U.S.C.A. (Federal Employers' Liability Act). Count A is founded on a failure to comply with section 23, Title 45 U.S.C.A., commonly known as the Boiler Inspection Act.

The evidence showed without dispute that the movement was of an engine and boxcars in a switching operation. The engine was in front, but was backing, and pulling the cars. The plan was to move in a northwesterly direction, extending across First Avenue, N. (Cotton Ave.), and on to and across Second Ave, N (or Tuscaloosa Ave.). As it moved there was across the front (which was the rear of the engine) a foot board, to be used by switchmen in performing their duty. The train had been standing just prior to the accident three or four car lengths south of First Ave., N. Camp was an experienced switchman. The city ordinance required that such a movement across the street shall be preceded by a crewman a reasonable distance ahead and shall give the prescribed danger signals. There was indication that Camp was to flag First and Second Avenues on this trip. There was evidence that Camp got on the foot board on the engineer's side, and from there Camp gave the 'back up' signal. The train did back up, and when it reached a point about five feet south of First Ave., Camp gave another back up signal. At this time, the engineer (Keller), the foreman (Brunson), who had climbed to the top of a nearby boxcar, could not see Camp standing on the foot board, but could see his hand and lantern as he gave the signals. It should have stopped for him to get off, if he was due to get off, but he gave the back up signal without the train stopping. They did not see him get off the foot board, nor precede the movement across First Avenue. The testimony of one McGill was that he was passing along the north side of First Ave., going east, approaching the train as it crossed that avenue, and that he saw a man ahead of the train with a lantern flagging the train completely across, and after he crossed he turned, and when he started to catch the train his feet hit the 'step' board and went out from under him and he fell, and he hollered loud two or three times, but he said that the engineer was picking up speed and making a fuss. That the train was first traveling about seven or eight miles an hour, and then gained speed and did not stop until it came to near Second Ave. The engineer swore his speed across the Avenue was about three miles an hour. None of the crewmen saw Camp or a signal from him after he gave the second back up signal. When the engineer got near Second Ave., he stopped the train for Camp to get off the foot board and flag the crossing, but did not see him get off, and so he got down off the engine to look for him, but did not find him, and then walked back to look for him, and met Brunson, and they went back together and found Camp's body one hundred and twenty to one hundred and seventy-five feet north of First Ave. His head entirely severed from his body was found there, and both feet also cut off were found forty to seventy feet from First Ave., and between where the feet and body were found some of his small personal effects were picked up.

The defendant contends that there was no necessity to flag this crossing at First Ave., since there was no traffic approaching from either direction; that the train did not stop for Camp to get off to flag the crossing, and if he did get off, none of the crewmen knew of it.

The theory on which negligence is claimed as to count 1 is that good practice required on a movement of that sort, that when a switchman being on the ground should catch the foot board, the engineer customarily brought his train to a stop, or practically so, to allow him to step on the foot board; that Camp flagged the train across First Ave., after which his duty required him to get on the foot board, and that the train should have stopped for him to do so. The train did not stop. The only evidence that he flagged the train across the avenue, and then tried to get on the foot board was that of McGill. Neither the engineer nor the other crewmen, nor anyone else, saw him flagging across, or knew that he was not on the foot board, if he was not. There is evidence that there was no traffic to need flagging. The evidence supports an inference that he was run over forty to seventy feet north of the crossing.

To support count 1, as contended for by plaintiff, the jury must find that Camp had flagged the train across First Ave., and then attempted to step on the foot board, and that the engineer was negligent in not stopping or slowing down the train for him, as was his duty. Of course, that duty did not exist unless the engineer had information that Camp was probably on the ground. The engineer says he did not see him on the ground, and did not know that he was not on the foot board going across First Ave. If he had been flagging across the street ahead of the movement, the engineer, fireman, and the foreman Brunson would probably have seen him. They did not see him according to their evidence. The only person who claimed to have seen him in such way as to make out a case for plaintiff was McGill.

After the motion for a new trial was made, and after the expiration of thirty days from the date of the judgment, it was attempted to be amended by adding grounds of newly discovered evidence to the effect that McGill had then signed a sworn statement that his testimony was false; that he was not there, and did not see the occurrence, but had so testified at the instance of one Frank Hunter. On motion of plaintiff, the court correctly struck those grounds of the motion. Sorsby v. Wilkerson, 206 Ala. 190, 89 So. 657; Atlantic Coast Line R. Co. v. Burkett, 207 Ala. 344, 92 So. 456; Francis v. Imperial Sanitary Laundry & Dry Cleaning Co., 241 Ala. 327, 2 So.2d 388. They were not germane nor in elaboration of any ground in the motion as filed. Ferrell v. Ross, 200 Ala. 90, 75 So. 466; Ohme v. Bisimanis, 222 Ala. 262, 132 So. 161.

Defendant on hearing the motion, one ground of which was that the verdict was contrary to the great preponderance of the evidence, offered to prove that McGill had thus repudiated his testimony and also that both he and Hunter had been convicted for contempt of court in connection with such testimony of McGill. The court sustained objection to that testimony. We can find no authority to justify a consideration of such evidence under the circumstances, and the court ruled correctly. Massey v. Reynolds, 213 Ala. 178, 104 So. 494; Powell v. Commonwealth, 133 Va. 741, 112 S.E. 657, 33 A.L.R. 541, 550; see, Cooke v. Embry, 219 Ala. 623(15), 123 So. 27; Hodge v. State, 32 Ala.App. 283, 26 So.2d 274(9); 46 Corpus Juris 230, section 186.

It should be noted that no fraud is charged to plaintiff in that connection, nor that he or his counsel had notice of the facts as to the false testimony in using it, if it was false. It is therefore not within the four months statute (Section 279, Title 7, Code).

But the principle of the common law is fully supported in Alabama, that it is the...