Central Iron & Coal Co. v. Massey

• Decision Date: 04 November 1920
• Docket Number: 3456.
• Parties: CENTRAL IRON & COAL CO. v. MASSEY.
• Court: U.S. Court of Appeals — Fifth Circuit

268 F. 300

CENTRAL IRON & COAL CO. v. MASSEY.

No. 3456.

United States Court of Appeals, Fifth Circuit.

November 4, 1920

Henry A. Jones and De Vane K. Jones, both of Tuscaloosa, Ala., for plaintiff in error.

Earle Pettus, of Birmingham, Ala., for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

KING Circuit Judge.

Defendant in error, W. J. Massey, brought an action in the United States District Court for the Western Division of the Northern District of Alabama against the plaintiff in error Central Iron & Coal Company, to recover damages for the breaking of his leg; said injuries alleged to have been caused by a defect in condition of the ways, works machinery, or plant connected with or used in the business of the said defendant.

The evidence showed that the defendant was engaged in mining coal; said coal was hauled from the mouth of the mine in small cars, which were then pushed on a descending track and ran upon a tipple, where they dumped, discharging their contents into railroad cars on a track below the tipple. In order to empty said coal, it was necessary that a door at the end of the small car, which was restrained by a latch, held in place by a catch called a 'monkey,' should be released; that to do this it was necessary to raise this monkey, which, if in good condition, would stay raised, but when loose would fall back, and had to be held up by wrapping around it a chain, which was attached to the forward part of the car; that the plaintiff was employed as a dumper.

There was evidence that, while the regular way was for the dumper to raise said monkey before the car was started down the decline towards the tipple, he had other duties to perform which often prevented his being at the mouth of the mine when the car was thus started, and that where this was the case it was customary for the dumper to walk briskly alongside of the descending car, which moved at the speed of a fast walk, and to raise the monkey, and, if necessary, to wrap around it the chain to hold it in place; that the car by which plaintiff was injured had been started down the decline before he could reach it; that he crossed the track and safely reached the side of the car on which the monkey was placed; that he raised same and discovered that it was loose and would not stand up; that he reached forward to get the chain with which to hold up the monkey, walking briskly along by the side of the car; that in the track on which this car was running there was a bad joint, the end of two of the rails being from two to three inches apart, and not in line, so that the flange of the wheel of the car struck this open joint, was derailed, and the car was thrown against him, ran over him, breaking his leg in three places, and inflicting upon him serious and permanent injuries.

The evidence indicated that the condition of the track and of the cars was known to the superintendent of defendant, in charge of the works, ways, and machinery; that it was not the duty of plaintiff to repair the same.

Defendant filed a plea in abatement, alleging the pendency of a former action brought by the plaintiff against the defendant in the circuit court of Tuscaloosa county, Ala., to recover for the same cause of action here set up. Said plea being overruled, defendant pleaded to the merits.

1. There was no error in sustaining the demurrer to the defendant's plea in abatement. It is well settled that the pendency of a suit for the same cause of action in a state court furnishes no ground for plea in abatement to a subsequent action brought by the same plaintiff against the same defendant in a court of the United States, sitting in the same state. Stanton v. Embry, 93 U.S. 548, 23 L.Ed. 983; Gordon v. Gilfoil, 99 U.S. 168, 25 L.Ed. 383; McClellan v. Carland, 217 U.S. 268, 30 Sup.Ct. 501, 54 L.Ed. 762.

2. Error is assigned upon the refusal of the court to exclude the testimony of the witness Pate to the effect that the condition of the track about the place of the accident was bad some two or three weeks before the accident. The court permitted the testimony to stay in, subject to its being connected up, and no motion was made at the conclusion of the testimony to exclude it. The further testimony showed that the condition of the track had not been changed during the intervening time. There was therefore no error in the ruling of the court. The objection to the expression of the witness that the condition of the track 'was what you might say in pretty bad shape,' even if originally meritorious was entirely explained and cured by the subsequent positive statement of the witness that the part of the track alluded to was in bad shape at the time indicated.

3. In view of the testimony in the case that the man bringing the small cars out of the mine was not supposed to wait for the dumper to come up and set the monkey before he shoved the car off, that if the dumper got to the car before it started in motion it was his duty to fix it for dumping before it started, but that when the car was started before the monkey was raised the man walked alongside and raised the monkey while the car was in motion, there was no error in permitting the plaintiff to testify that he did not have time to reach the car while it was standing still so as to then raise the monkey.

4. It is urged that the court erred in not sustaining defendant's objection to the...