Edwards v. Southern Ry. Co.

• Decision Date: 11 June 1936
• Docket Number: 6 Div. 869
• Citation: 233 Ala. 65,169 So. 715
• Parties: EDWARDS v. SOUTHERN RY. CO. et al.
• Court: Alabama Supreme Court

169 So. 715

233 Ala. 65

EDWARDS v. SOUTHERN RY. CO. et al.

6 Div. 869

Supreme Court of Alabama

June 11, 1936

Rehearing Denied Oct. 8, 1936

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action for wrongful death by Lillie Belle Edwards, as administratrix of the estate of R.L. Edwards, deceased, against the Southern Railway Company and others. From a judgment for defendants plaintiff appeals.

Affirmed.

O.D Street and Morrow & Longshore, all of Birmingham, for appellant.

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

THOMAS Justice.

The suit was for personal injury and death resulting from the alleged wrongful act of the employer.

The trial was had on counts 1 to 5, inclusive, alleging defects in the loading of a car of poles, in that an insufficient number of standards was used to withstand the stress or superadded weight of the load to be held; and that the standards used were not of sufficient size and strength and the kind of material for such purpose.

The branch complaints were like the original.

The defendants interposed pleas of the general issue contributory negligence, and the assumption of risk.

The several witnesses testified to the number, nature, material, and size of the stanchions employed in retaining the poles on the car, and this evidence contained reasonable tendencies supporting the complaint. The witness Bass testified that such supports were small and insufficient; Mr. Graham, an experienced car inspector, gave as his judgment as an expert, that they were not of the proper size or strength, or sufficient number to sustain the load in question. This was material evidence of fact and of expert opinion for the jury to give such weight as it was worth, when considered with the other evidence of fact. Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755; Commonwealth Life Ins. Co. v. Brandon (Ala.Sup.) 167 So. 723.

In the case of McGeever v. O'Byrne, 203 Ala. 266, 269, 82 So. 508, the phrase "assumption of risk" is fully considered, and it is there noted that the expression is sometimes loosely applied to cases where there was no contractual relation between the parties. The rule declared is, that it must be confined to cases where the plaintiff knew and appreciated the danger assumed, and with such knowledge and appreciation voluntarily put himself in the way of it. This is the rule that is followed in this jurisdiction. Louisville & N.R. Co. v. Parker, 223 Ala. 626, 636, 138 So. 231; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 575, 119 So. 610; Dunklin v. Hanna, 229 Ala. 242, 156 So. 768.

The evidence tended to show that the deceased was previously employed as a transfer man or drayman; that this was about the first work he had done unloading poles.

The witness Otwell testified in this connection, of the employment of deceased, the conversation he had with deceased, during the course of which he discussed, by way of suggestion, the proper way to unload a car properly packed, and warned deceased that it was "his job" and they "didn't want anybody to get killed or get hurt there."

The evidence showed the car was leaning at the top about a foot toward the south side when received and the unloading undertaken.

Bass testified that he was assisting deceased, and discussed with him the safest way to unload, and they decided to "cut it (the stanchions and wires) on the side next to the main line, which was the north side." While so engaged, the accident occurred.

On cross-examination the witness Otwell testified that if the car was leaning ten or twelve inches at the top, toward the south, he would not say it was safe to attempt to unload it in the manner he had suggested to deceased. He testified further as to this:

"We got to talking about the way to cut the wires, and I make a suggestion as to the way he should cut them. I made a suggestion as to the way I generally cut them. I don't remember the exact words I said to him about it. I explained to him that that was his job and we didn't want anybody to get killed, or get hurt there, and to do it the safest way, but as to the exact words, I don't know. We talked about it there for a few minutes. He was sitting down and the other fellow was skidding the poles away from there. That is about all that I can remember of that conversation. I told him that the way we had usually done it was first to notch the standard on the side you wanted the poles to go off on, and then the way we usually did it was to cut the middle strand on the same side where the notch was, and then to go around on the other side and cut the wire here (indicating). I did not tell him that if a car was leaning as much as ten or twelve inches--the load leaning that way--that we would go here and notch this standard here (indicating), and with the car leaning ten or twelve inches over the same way. No, Sir, I wouldn't do that myself, not if it didn't look safe. If that load of poles was leaning ten or twelve inches at the top, I wouldn't go here and notch these standards (indicating), half way through, and then cut those wires; I wouldn't have put myself in that position. No, Sir, I wouldn't have done it. No, Sir, I guess I wouldn't consider it safe."

Defendants offered evidence tending to show that the car was properly loaded and so proceeded in the shipment; that no defects, as indicated by plaintiff, were observable or existed. Such was the effect of the testimony of the employees of Brown & Sons Lumber Company, and of the Southern Railway Company's employees who inspected the car at the point of destination and testified that it was in proper condition for unloading.

It is apparent from such tendencies of evidence that there was conflict as to the nature, character, size, and affixation of the stanchions in the cuffs of the car--material facts of due shipment and delivery of the car in a reasonably safe condition for unloading.

The several counts aver the dangerous manner in which the car was loaded; the defects and insufficiencies of the supporting stanchions; that defendants knew, or by the exercise of reasonable diligence might have known, the manner employed rendered the unloading dangerous; that it was the duty of defendants to so inform the consignee of the condition of the car, which they failed to do, and such failure proximately resulted in injury and death to plaintiff's intestate.

The shipper was under duty to load the car in a safe condition for receipt by the consignee or its servants; and if such was not the fact or condition, it was the shipper's duty to notify the consignee or its servants of such danger. A like duty rests upon the delivering carrier, if it has knowledge of a dangerous condition, or could know of it by the exercise of reasonable care.

Therefore, the pertinent questions of fact for determination by the jury under the pleading and evidence, were: (1) Whether the car was loaded in such a manner as to make it safe in transportation and delivery, and render its unloading safe to the consignee, or the servants of the consignee employed and under duty to receive and discharge such superimposed burden; (2) to determine whether each of the defendants, and, if so, which ones, knew of this dangerous condition of transportation and delivery, or by the exercise of reasonable diligence such danger could or would have been known; (3) whether or not there was failure to discharge the duty which the law ordinarily imposes to give due warning of a dangerous condition; (4) whether the failure of duty in that behalf proximately contributed to the death of plaintiff's intestate; and (5) whether his injury was the result of his own negligence or the risk he knowingly and voluntarily assumed.

The rules for giving or refusing general affirmative instructions need not be repeated. McMillan v. Aiken et al., 205 Ala. 35, 40, 88 So. 135; Jones et al. v. Bell, 201 Ala. 336, 77 So. 998; Commonwealth Life Ins. Co. v. Brandon (Ala.Sup.) 167 So. 723. The scintilla rule prevails in this state. Penticost v. Massey, 202 Ala. 681, 81 So. 637; Cleveland Laundry Machinery Mfg. Co. v. Southern Steam Carpet Cleaning Co., 204 Ala. 297, 85 So. 535. The rule that obtains in federal courts in this connection does not apply in this jurisdiction. Louisville & N.R. Co. v. Parker, 223 Ala. 626, 138 So. 231; A.B. Small Company v. Lamborn & Company, 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597.

The duties arising from omissions or acts of a shipper, and those arising from the respective co-operation by several common carriers for delivery of shipments at destination in which there is no injury to third persons in unloading the shipments, by reason of defective equipment in loading at the initial point, have been considered by the courts with varying results.

"In [the English case of] Elliott v. Hall, L.R. 15 Q.B.Div. 315 it was held that a colliery owner, who shipped coal by rail, in a car leased by him, to a firm, was liable to a servant of the latter, who was injured while unloading the car, owing to the existence of a worn pin, which constituted the fastening of a trap in the bottom of the car. Grove, J., said: 'It was clearly part of the contract for the sale of the coal to the plaintiff's employers, that it should be conveyed in a truck to the buyers, and it must necessarily have been contemplated that, when it arrived at its destination, the truck would be unloaded by the buyers' servants. I think that it is plain that under these circumstances a duty arose on the part of the defendant towards the plaintiff. If vendors of goods forward them to the purchasers, and for that purpose supply a truck or other means of conveyance for the carriage of the goods, and the goods are necessarily to be unloaded...