Ellerbee v. Atlantic Coast Line R. Co., 6 Div. 220

Citation61 So.2d 89,258 Ala. 76
Decision Date27 August 1952
Docket Number6 Div. 220
PartiesELLERBEE v. ATLANTIC COAST LINE R. CO.
CourtSupreme Court of Alabama

Hewlett, Dennis, Bowden & Barton, Atlanta, Ga., and Jackson, Rives & Pettus, Birmingham, for appellant.

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

LAWSON, Justice.

This is a suit by M. C. Ellerbee against the Atlantic Coast Line Railroad Company, brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for personal injuries alleged to have been sustained as the result of the derailment of a motor car on which Ellerbee was riding while in the performance of his duties as a section foreman for the railroad company.

The derailment occurred in Georgia. The right of plaintiff to prosecute his suit in Jefferson County, Alabama, was upheld in Ex parte State ex rel. Atlantic Coast Line R. Co., 254 Ala. 28, 47 So.2d 251.

The case went to the jury on Counts 3 and 4 of the complaint and the defendant's plea of the general issue in short by consent.

The gist of an action under the Federal Employers' Liability Act is negligence. Alabama Great Southern R. Co. v. Davis, 246 Ala. 64, 18 So.2d 737; Roberts v. Alabama Great Southern R. Co., 250 Ala. 629, 35 So.2d 509; Atlanta, B. & C. R. Co. v. Cary, 250 Ala. 675, 35 So.2d 559; Reynolds v. Atlantic Coast Line R. Co., 251 Ala. 27, 36 So.2d 102; Louisville & N. R. Co. v. Green, 255 Ala. 642, 53 So.2d 358.

Count 3 of the complaint charges negligence in the following language: '* * * and the plaintiff avers that his said wounds, injuries and damage were the proximate consequence of or resulted in whole or in part from the negligence of the officers, agents or employees of said defendant or by reason of a defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, tracks, roadbed or other equipment.' Count 4 charges negligence in practically the same language.

Ellerbee had been in railroad work nearly all of his adult life and had been with defendant and its predecessor companies for twenty-five years or more. For approximately twenty-five years prior to March 1, 1948, he lived in Manchester, Georgia, where he worked as a section foreman. On or about March 1, 1948, he was transferred to Brunswick, Georgia, where he continued in the same service. He had been working on his new job about sixty days when the derailment occurred, on April 30, 1948.

Ellerbee had at his disposal for use in the performance of his duties a motor car and a 'push' car. On April 30, 1948, Ellerbee and his crew of five men were sent to replace some rails at the 'Pulpwood Switch' about two or three miles north of Brunswick. They rode to the job site on the motor car, which was pulling the 'push' car. They carried several rails, some switches and necessary tools and equipment. After the work had been completed, the rails and switch which had been removed were loaded on the motor car and the push car. Ellerbee and his crew then began their return trip to Brunswick. The rails were resting on both cars. The motor car was in the lead. Before reaching Brunswick and while traveling at a speed of from eight to ten miles an hour, the derailment occurred.

Ellerbee gave testimony going to show that the derailment was caused by the defective track, specifically, a high joint, referred to by the witnesses as a 'snake-head' joint. There was evidence on behalf of plaintiff tending to show that the 'snakehead' joint resulted from the defendant's failure to use the proper kind of angle bars or irons in connecting the rails. Neither Ellerbee nor any of his witnesses gave testimony tending to show that the injury which he claimed to have suffered resulted from the negligent manner in which any servant agent or employee of defendant operated the motor car or loaded the rails and switch thereon. He did introduce in evidence the answer of defendant to interrogatories. In answer to an interrogatory as to the cause of the derailment, the defendant stated: 'The motor car was caused to be derailed on April 30, 1948 because of the negligent and improper manner in which Mr. Ellerbee directed the loading of the rails and material on the motor car and the attached push car, and the use he directed be made of the vehicles so improperly loaded. After the derailment, the wheels which derailed were put back on the track and the car and the crew proceeded on to Brunswick.'

Evidence for the plaintiff was to the effect that he suffered a broken back as a result of the derailment.

The defendant undertook to show that the track was not in a defective condition and that the cause of the derailment was not due to the manner in which the track was constructed and maintained. There was much evidence offered by the defendant going to show that Ellerbee actually received no injury as the result of the derailment and that the injury to his back had been suffered long prior to the date of the accident.

There was a jury verdict in favor of the defendant. Judgment was in accord with the verdict. Plaintiff's motion for new trial having been overruled, he has appealed to this court.

Assignments of error relate to the trial court's action in giving two written charges at the request of the defendant and rulings on the admission and exclusion of evidence.

Plaintiff below, appellant here, complains of the trial court's action in giving Charges A and B at the defendant's request. These two charges are very similar. Charge B, which is the broader of the two, reads as follows: 'The Court charges the jury that if you are reasonably satisfied from the evidence in this case that the sole proximate cause of the derailment of the motor car on which M. C. Ellerbee was riding on the occasion in question was the manner in which the said motor car was loaded and being operated at that time, then your verdict must be for the defendant.'

We pretermit any consideration of the question as to whether under the pleading and evidence in this case the giving of Charges A and B would constitute reversible error if the case had not been tried on the single issue of whether the defendant was guilty of negligence in the manner in which the track was constructed and maintained.

From the institution of the suit, the opening statement to the jury by counsel for plaintiff, through the course of the trial proceedings, and down to and including plaintiff's closing argument to the jury, plaintiff's counsel by statements expressed made it plain to the court that plaintiff was basing his right to recover on the sole contention that plaintiff's injury was proximately caused by the negligent manner in which the track was constructed and maintained.

In opening statement to the jury at the beginning of the trial, one of counsel for plaintiff stated:

'Mr. Ellerbee, the plaintiff, has...

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11 cases
  • Southern Elec. Generating Co. v. Lance, 7 Div. 396
    • United States
    • Supreme Court of Alabama
    • 12 Marzo 1959
    ...let the witness answer the question.' This was invited error and appellant cannot now avail itself of the error. Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So.2d 89. Assignment 5 complains of the answer to a similar question, but the answer was essentially the same as the answe......
  • Alabama Great Southern R. Co. v. Bishop, 7 Div. 291
    • United States
    • Supreme Court of Alabama
    • 14 Junio 1956
    ...was in error in allowing, over the defendant's objection, the expert to express the aforementioned opinions. In Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So.2d 89, expert witnesses were permitted to express the opinion that the track at the point where the derailment occurred ......
  • Louisville & N. R. Co. v. Vickery, 1 Div. 647
    • United States
    • Supreme Court of Alabama
    • 8 Junio 1972
    ...to the question involved in Assignment of Error 24 was properly admitted as the opinion of an expert. See Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So.2d 89; Tennessee Coal, I. & R. Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459; Atlantic Coast Line R. Co. v. Hardwick, 239 Ala. 5......
  • Aetna Life Ins. Co. v. Beasley, 7 Div. 510
    • United States
    • Supreme Court of Alabama
    • 11 Mayo 1961
    ...not avail himself of error, if there be error, into which he has led the court; this is called invited error. Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So.2d 89; Western Union Telegraph Co. v. Griffith, 161 Ala. 241, 50 So. 91. The verdict of the jury was not contrary to reque......
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