Gulf States Steel Co. v. Carpenter
| Citation | 83 So. 55,203 Ala. 331 |
| Decision Date | 19 June 1919 |
| Docket Number | 7 Div. 8 |
| Parties | GULF STATES STEEL CO. v. CARPENTER. |
| Court | Supreme Court of Alabama |
Rehearing Denied. Oct. 23, 1919
Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.
Action by Charles F. Carpenter against the Gulf States Steel Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Hoed & Murphree, of Gadsden, for appellant.
P.E Culli and Victor Vance, both of Gadsden, for appellee.
This case went to the jury on counts 3, 4, and 5. These counts alleged, in agreement with the undisputed evidence, that plaintiff, appellee, while operating an engine for defendant at its steel plant, was injured by a collision with another engine, engaged in the same employment and operated by one Shorty Jones. The allegation is that the engine operated by plaintiff ran into the engine operated by Jones, and the charge is that Jones negligently allowed his engine to stand on a switch leading off from the track upon which plaintiff was operating his engine and so near thereto as to cause the collision. The counts are framed, of course, under the fifth subdivision of the Employers' Liability Act (section 3910 of the Code); said subdivision providing for the liability of the employer when the employé's injury is caused by reason of the negligence of any person in the service or employment of the employer who has charge or control of any locomotive or engine upon a railway.
Without contradiction or adverse inference, except as otherwise noted, the evidence showed the following facts: Plaintiff and Jones were both employed to operate dinkey engines in the yard adjacent to defendant's open-hearth steel furnaces. A main line ran east and west through the center approximately, of the yard. To the north, and along by the furnaces, a parallel track, called the "open-hearth track," ran. A switch track connected the main line with the open-hearth track. At a point opposite the west end of the furnaces, which stood in an east and west line, another switch track connected the main line with a track called No 3, which was located to the south of the main line. Jones' business with his engine was to bring cars, laden with materials for the furnaces, over the main line from the "field," which lay to the west, up to the yard, and to take empty cars back from the yard to the field. Plaintiff's business with his engine was to shift loaded cars from the yard to which they had been delivered by Jones over to the open-hearth track, from which their contents were fed to the furnaces, and to return empties to the yard whence they were taken by Jones to the field. When not busy, the place for Jones' engine was at a point on the main line known as "the spot." The spot was just at or immediately adjacent to the point at which track No. 3 branched off from the main line. A short time before the accident in which plaintiff received his injuries, he had moved some empty cars, five or six, from the open-hearth track over to the main line and from the main line had "kicked" them over to track No. 3. These cars stopped or were stopped so near the main line that an engine attached to them would not stand clear of the main line. A few minutes before the accident, plaintiff's engine was standing on the main line near "the spot"; Jones' engine was on the main line about 50 yards to the west. Plaintiff testified that he saw Jones' engine while they were thus standing. Then plaintiff moved toward the east and coupled his engine to five or six loaded cars waiting there for transfer to the open-hearth track. Jones followed to the switch and coupled his engine to the empty cars on track No. 3. Thus his engine stood partly on No. 3 and partly on the main line, or it stood with its wheels on No. 3, its cab over the main line. For all practical purposes it stood on "the spot." It waited there while two employés of the defendant with long-handled hoes scraped débris off the cars. These engines were small, four-wheeled engines; they had no tenders. The cars too were small; on each car were three pans into which materials for the furnaces were loaded. After the cars had discharged their materials, the pans were lifted by a magnet, attached to an overhead movable crane, so that the surfaces beneath might be cleaned. While this was being done, defendant's yard foreman in the usual way of such operations, except that at first he took no notice of the position of Jones' engine, gave an order to plaintiff's switchman to move the cars to which his engine was coupled. The switchman--also in the usual way--communicated the order to plaintiff, and plaintiff, to get his cars in a position from which they could be switched over to the open-hearth track, backed his engine toward the point where Jones' engine was standing. The foreman, noticing then the position of Jones' engine, signaled an order that plaintiff's engine and cars stop; but he could not see plaintiff, and plaintiff denied any knowledge of the order.
In the collision which followed, a steam pipe on the side of Jones' engine was broken by the...
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