Central of Ga. R. Co. v. Rush

• Decision Date: 03 September 1970
• Docket Number: 6 Div. 480
• Citation: Central of Ga. R. Co. v. Rush, 239 So.2d 763, 286 Ala. 333 (Ala. 1970)
• Parties: CENTRAL OF GEORGIA RAILROAD COMPANY, a Corporation, v. Franklin Eugene RUSH.
• Court: Alabama Supreme Court

Page 763

239 So.2d 763

286 Ala. 333

CENTRAL OF GEORGIA RAILROAD COMPANY, a Corporation, v. Franklin Eugene RUSH.

6 Div. 480.

Supreme Court of Alabama.

Sept. 3, 1970.

Rehearing Denied Oct. 8, 1970.

Sadler, Sadler, Sullivan & Sharp, Birmingham, for appellant.

Hare, Wynn, Newell & Newton, Birmingham, for appellee.

MERRILL, Justice.

This is an appeal by the defendant railroad company from a judgment of $18,000.00 in a suit brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The sole issue is whether the trial court erred in refusing to give the affirmative charge as requested by the defendant.

The single count, as amended, which went to the jury charged that while the appellee was 'acting within the line and scope of his employment by the defendants * * * a firearm he was carrying discharged and injured and damaged the plaintiff.' The appellee charged that the railroad was negligent in whole or in part in requiring him (1) to work in an inadequately lighted area; (2) in that he was put to work in a crowded place; (3) in that he was assigned work to do with insufficient manpower or machinery; (4) in that there was a safer way to do the work assigned. The complaint averred that the plaintiff was required 'to work in a place and under conditions of such danger and hazard that it became reasonable to carry for his own safety * * * a firearm, which * * * accidentally discharged.'

Where the affirmative charge is requested, the entire evidence must be viewed in light most favorable to the opponent, and where this is done and a reasonable inference may be drawn adverse to the party requesting the charge, the charge is properly refused. Atlantic Coast Line R. Co. v. McMoy, 261 Ala. 66, 73 So.2d 85 (1954); Birmingham Southern Railroad Co. v. Ball, 271 Ala. 563, 126 So.2d 206 (1961).

The Federal Employers' Liability Act (F.E.L.A.) provides, in pertinent part:

'Every common carrier by railroad * * * shall be liable in damages to any person suffering injury While he is employed by such carrier * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, * * *.' 45 U.S.C.A. § 51. (Emphasis supplied).

The evidence showed that the plaintiff-appellee, Rush, was employed by the Central of Georgia Railway Company as a trainman, whose duties included flagging, switching, braking or other duties on a train, having been employed by the defendant beginning in 1955. He was a flagman at the time the accident occurred on October 24, 1961. A flagman is also a trainman but the flagman rides at the rear of the train. According to the Operating and Maintenance Rules, § 872, of the Central of Georgia Railway Co., a trainman's duties include assisting the conductor 'in switching their trains, inspecting cars, seeing that handbrakes are released before moving, loading and unloading freight and all things necessary for the safe, prompt movement of their train.'

On the day of the accident, the appellee had returned from a trip to Andalusia, Alabama, on board the train on which he was working, to Union Springs, Alabama, at about 6:00 or 6:30 P.M. It being near quitting time, he left the train, went to his car, started the engine so that it could be warming up, and got a small derringer pistol from the glove compartment. He then walked toward a nearby tool shed to wait for the engine to pull up. On the way, he showed the pistol to the conductor who examined it and returned it to the plaintiff. Rush testified that the safety was on; that he then put the pistol into his flannel shirt pocket which he buttoned, and proceeded on to the tool shed. He testified that it was dark. When the diesel pulled up, he climbed onto the engine to begin unloading some rerailing equipment which had been placed on a 30-inch wide catwalk surrounding the engine. Another employee was also on the catwalk to help unload a hook and cable. Rush had a lantern hanging on one arm. As he bent over to pick up a forty or fifty pound hook, he bumped the side of the diesel, the lantern slipped down his arm, and when he grabbed for it, the pistol fell from his pocket. It discharged, sending metal fragments into Rush's eyes. The pistol was loaded with 'rat shot.'

Evidence was introduced to show that some railroad employees had carried guns for their self protection against hoboes and snakes. There was no evidence that it was a custom to carry guns. The plaintiff testified that he could not remember ever before having carried a gun in his shirt pocket. He did not have a permit for the gun, and had owned it for two weeks.

In brief, appellant does not argue the question of negligence. This is not a critical statement because there probably was some evidence or a conflict in the evidence as to whether the place appellee was working was adequately lighted, whether he should have had to carry the lantern on his arm when he needed both arms to do the lifting job, whether better equipment or more manpower was customary to do the job and whether the negligence of another workman in prematurely throwing one end of the cable off the engine put appellee in a precarious position.

Appellant presents an ingenious argument built around a correct statement. The second sentence in the argument section of the brief reads: 'In order for the appellee to recover, he must prove that his injuries arose out of his employment.' After that statement, our case of Dallas Manufacturing Co. v. Kennemer, 243 Ala. 42, 8 So.2d 519, and similar Workmen's Compensation cases from other jurisdictions are cited in support of its argument. We note that a case closer in point is Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So.2d 666. There, the employee was accidentally shot by the young son of his immediate superior with a revolver which the employee placed on the desk where the child's toy pistol had been laid. We held that the employee was killed as the result of an accident which 'arose out of and in the course of his employment.'

In Workmen's Compensation cases, the personal injury or death must be 'caused to an employee by an accident Arising out of and in the course of his employment, * * *.' (Emphasis supplied). Tit. 26, § 253, Code 1940.

The above emphasized words have become words of art and have been construed many times in Workmen's Compensation cases. No such words appear in the F.E.L.A. The requirement there is that the person be injured 'while employed' by the carrier. 'While employed' covers a wider field than 'arising out of and in the course of his employment.' F.E.L.A. is a federal act and in such cases, 'we are bound by Federal decisional law.' Birmingham Southern Railroad Co. v. Ball, 271 Ala. 563, 126 So.2d 206. In Louisville & Nashville Railroad Co. v. Crim, 273 Ala. 114, 136 So.2d 190, we held that there was some evidence that the defendant railroad had not furnished proper or sufficient equipment, a reasonably safe place to work and competent and sufficient help to do the work assigned to the employee and that the trial court did not err in refusing the request for the affirmative charge.

In the instant case, there was sufficient evidence to go to the jury on the question of negligence. That was the issue presented by the pleadings, and the issue submitted to the jury by the evidence and the charge of the court. We cannot, on appeal, take a narrower issue and confine our decision to whether the appellee's injuries 'arose out of his employment.' It is not disputed that appellee was employed by appellant, doing an assigned job in the line and scope of his employment and performing it under conditions that presented a question of appellant's negligence to the jury when he was injured.

In Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916, where there was evidence 'tending to show that it was physically and mathematically impossible' for the employee to have been injured as plaintiff claimed, but still, the jury found in favor of plaintiff. The Supreme Court of the United States said:

'It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.'

In Rogers v. Missouri Pacific Rwy. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, it was said:

'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 sought. 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 narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. * * *

'The Congress when adopting the law was particularly concerned that the issues whether there was employer fault and whether that fault played and part in the injury or death of the employee should be decided by the jury whenever fair-minded men...