Davis v. Sorrell

• Decision Date: 09 April 1925
• Docket Number: 6 Div. 239
• Citation: 213 Ala. 191,104 So. 397
• Parties: DAVIS, Agent, v. SORRELL.
• Court: Alabama Supreme Court

104 So. 397

213 Ala. 191

DAVIS, Agent, v. SORRELL.

6 Div. 239

Supreme Court of Alabama

April 9, 1925

Rehearing Denied May 21, 1925

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action for damages by Blanche Sorrell, as administratrix of the estate of W.T. Sorrell, deceased, against James C. Davis, as Agent, under the Transportation Act (41 Stat.U.S. 456) operating the Southern Railway Company's lines. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

W.A Denson and S.R. Hartley, both of Birmingham, for appellee.

GARDNER J.

This is an appeal from a judgment recovered by appellee, as administratrix of the estate of W.T. Sorrell, deceased, against appellant, in an action under the federal Employers' Liability Act (U.S.Comp.St. §§ 8657-8665). No question is presented as to due proof of dependency, earnings of the plaintiff's intestate, and amount of recovery, nor was it controverted that at the time the fatal injuries were received, the deceased employé was engaged in work of such interstate character as to bring the case within the influence of the federal act. The cause was submitted to the jury on count 3, the general issue joined thereon, and plea of contributory negligence in mitigation of the damages.

The accident occurred about 9 o'clock on the night of January 22, 1920, while deceased (hereinafter referred to as Sorrell) was employed by defendant as a switchman in the yards at Birmingham. Sorrell was a member of the shop engine crew, being known as the head brakeman, and his duties required that he work next to the engine. The crew consisted also of a foreman, one Mitchell, fireman, engineer, and a rear switchman or field man; a Mr. Ray held the latter position. The crew had brought a "cut of cars" that were in good condition out of the Avondale shops, and carried them eastward to the Woodlawn yard, where was located the double track of the Alabama Great Southern Railroad, to the south of which were the two main line tracks of the Southern Railway. Immediately south of these two latter tracks were yard tracks known as tracks Nos. 3, 2, and 1, beginning with track No. 3 and going south. These yard tracks were connected at the east and west ends with the Southern main line tracks by lead tracks for switching purposes. A detailed statement of the switching operation and purposes thereof is not essential to any questions here presented, and the salient facts immediately preceding the accident may be summarized as follows: It became necessary to take from track No. 1 a cut of cars and place a portion of them on track No. 2. This was done, and the train backed out of track No. 2 with two cars, which were again to be run into track No. 1. After having backed the two cars out of track No. 2, Sorrell threw the switch, and gave the signal for running these two cars back into track No. 1. The second car from the engine was a steel car, and the end car left standing on track No. 2, which Sorrell had just uncoupled, was a wooden car, and Sorrell was riding on the front end of the steel car as the two cars were being pushed into track No. 1. In thus going into track No. 1, the steel car, on which Sorrell was riding, "side-swiped" with the wooden car above referred to, left standing on track No. 2, with the result that Sorrell was crushed to such an extent as that he died within a few hours after the accident. The proof shows also that the night was dark, and it was raining. At the time of the accident, Ray, the "field man," was at the opposite end to the cut of cars on track No. 2 to see that the cars on that track were not pushed so far as to interfere with the lead track on that end. Mitchell, the foreman, to whose orders the crew was subject, after giving directions to Sorrell to do this switching, and before the switching operations were begun, left him and went down into the yard, and had gotten "about 10 to 12 car lengths down the main line," when he heard the cars collide. Sorrell was a man of many years' experience, having served as conductor, switchman, and brakeman, though he had worked on this particular job in that place only a short time. Photographs were taken of the two cars that collided just as they were left standing after the accident, and these were introduced in evidence, and form a part of this record.

Plaintiff insists these photographs show the cars did not strike at the ends, and support her theory that the wooden car on track No. 2 moved eastward after being uncoupled by Sorrell, and, in further support of this theory, offered the evidence of one Owen who testified that he was in the yards, and near the scene of the accident at the time the cars collided, standing in the shade of a cut of cars that were "bumped into" and made to move eastward, the direction of the accident. This witness further stated that just following this movement, and hearing the crash, he walked to where Sorrell was lying injured.

Plaintiff rests her right of recovery upon two theories, the first being that it was the duty of Mitchell, the foreman, also to see that the cars left in No. 2 track were left in the clear, and that he should have aided Sorrell in this respect, especially in view of the fact that the night was dark and raining; that therefore Mitchell was to that extent guilty of negligence contributing to the accident. In support of this theory plaintiff offered the testimony of witnesses Clark, Elliott, and McCormack, to the effect that in this switching movement it was the duty of Mitchell, the foreman, to supervise the same, and see to it that the cars on track No. 2 were left in the clear. Defendant's objection to this proof was overruled. These witnesses were experienced railroad men, and experienced in that character of work, and we are of the opinion the evidence was competent. Sloss-Sheffield Steel & Iron Co. v. Green, 159 Ala. 178, 49 So. 301.

The defense rested upon the theory that the work of Sorrell as head brakeman required him to perform all switching duties as to this particular operation, and that, as he gave the signals, coupled and uncoupled the cars, the responsibility rested entirely upon his shoulders, and the accident was solely the result of his own negligence in failing to see that the cars left on No. 2 track were not in the clear.

The rule is well established that, under the federal Employers' Liability Act, if the injury resulted "in whole or in part" from defendant's negligence, the cause of action is established, and that contributory negligence on the part of the employé is not a bar to recovery, but to be considered in mitigation of damages only." Plaintiff's negligence, contributing with defendant's negligence, in the production of the injury, does not defeat the cause of action, but only lessens the damages. Grand Trunk R.R. Co. v. Lindsay, 233 U.S. 42, 34 S.Ct. 581, 58 L.Ed. 838, Ann.Cas.1914C, 168; Southern Ry. v. Peters, 194 Ala. 94, 69 So. 611; Authement v. L.W. Ry, Co., 147 La. 816, 86 So. 215; Illinois Cent. R.R. Co. v. Skaggs, 240 U.S. 66, 36 S.Ct. 249, 60 L.Ed. 528.

But very clearly the primary duty rested upon Sorrell to see that the cars he...