Kingsberry Homes Corp. v. Ralston

• Decision Date: 26 March 1970
• Docket Number: 6 Div. 658
• Parties: KINGSBERRY HOMES CORPORATION, a Corporation, and Kingsberry Homes Division of Boise Cascade Corp., a Corporation, successor by reason of merger to Kingsberry Homes Corporation v. Howard E. RALSTON.
• Court: Alabama Supreme Court

Page 371

235 So.2d 371

285 Ala. 600

KINGSBERRY HOMES CORPORATION, a Corporation, and Kingsberry Homes Division of Boise Cascade Corp., a Corporation, successor by reason of merger to Kingsberry Homes Corporation v. Howard E. RALSTON.

6 Div. 658.

Supreme Court of Alabama.

March 26, 1970.

Rehearing Denied May 15, 1970.

John H. Morrow, Warren B. Lightfoot, Birmingham, for appellant

[285 Ala. 602] Francis H. Hare, Birmingham, for appellee.

BLOODWORTH, Justice.

This is an appeal by the defendant Kingsberry Homes from a judgment for plaintiff, and judgment overruling motion for new trial, in an action for personal injuries which resulted in a jury verdict for $27,500.

Plaintiff, a freight train conductor, recovered a consent judgment for $40,000 against his employer, the AGS Railroad, under the Federal Employers' Liability Act for his injuries arising out of this accident. Plaintiff then brought this suit against Kingsberry Homes for negligently maintaining its loading dock in a condition not reasonably safe for the crews of railway freight trains because of such a close clearance between the loading dock and freight cars on a spur track. After a jury trial, he recovered judgment against Kingsberry Homes for $27,500. The consent judgment against AGS is subject to deduction for any recovery from Kingsberry Homes.

This accident occurred when plaintiff came on the premises on the AGS train to move three empty boxcars sitting on the spur track adjacent to the platform. While plaintiff was using the stirrup or step of a boxcar to climb upon the Kingsberry platform to see whether the cars were clear Kingsberry Homes operated a manufacturing plant in Fort Payne, Alabama, receiving freight at its premises on a spur track off the AGS Railroad main line. Shipments were loaded and unloaded from AGS Railroad cars to Kingsberry Homes upon its loading platform constructed adjacent to the spur track. The spur track at this point was owned by Kingsberry Homes. The loading platform was constructed after the spur track was built. It is located from 6 feet 5 inches to 6 feet 8 1/4 inches from the center of the track. The area between the track and the platform was dirt; it was not level but sloped. There was debris, wood and steel scattered along the area. From the side of a boxcar sitting on the spur to the edge of the platform was approximately 22 inches. Measurements of the distance from a step on a boxcar to the platform showed it to be about 13 1/2 inches. The floor of a boxcar was about even with the level of the platform. A steel plate is used by Kingsberry to connect the platform with a railroad car to load or unload its materials with a forklift.

of workmen before a coupling was made, his fellow crewman backed the train into the far end of that boxcar and mashed him between the side of the car and the loading platform, fracturing his acetabulum. Plaintiff related that he had not given any signal to the brakeman, but that the brakeman had taken it upon himself to signal the train back. He said that the train should not have moved without getting a signal from him to couple up. He did not expect the cars to move at all.

Defendant's predecessor company ¹ entered into a contract with the railroad that it would '* * * at all times keep free and clear of any obstruction whatever * * * the space twenty (20) feet in width measured ten (10) feet each way from the center of said track, all structures, facilities or property located or placed * * * parallel with the same to be safely and substantially maintained * * * to preserve said clearances; * * *.'

On this appeal, appellant Kingsberry Homes argues for reversible error the actions of the trial court, viz: Overruling its motion for a new trial as to the insufficiency of the evidence; refusing to give its general affirmative charge with hypothesis; refusing to give its two charges dealing with 'open and obvious' dangerous conditions, and its charge relating to a 'hazard or danger' of which plaintiff's employer was fully aware; and, sustaining plaintiff's objection to a question to defendant's witness as to whether a loading platform is an 'obstruction.'

First, Kingsberry complains of the overruling of its motion for new trial. The only ground argued is that the verdict is contrary to the great weight of the evidence, thus it is the only one we consider. State v. McDaniel, 285 Ala. 310, 231 So.2d 878; Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So.2d 484; Boudrow v. H & R Construction Company, 284 Ala. 60, 222 So.2d 154 (1969).

In Zoning Board of Adjustment, etc. v. Wright, 283 Ala. 654, 658, 220 So.2d 261, we restated our oft-expressed rule:

'Verdicts are presumed to be correct; and when the trial judge refuses, as here, to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. * * *'

We have also repeatedly held that we 'will not reverse an order refusing a new trial on the ground that the evidence is not sufficient to support the verdict, or that the verdict is contrary to the evidence, 'unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is Next, Kingsberry urges error to reverse in the trial court's refusal to give the general affirmative charge with hypothesis. The argument here seems to be that defendant is not liable to the plaintiff on account of injury resulting from the 'open and obvious' danger due to the closeness of the loading platform to the track, because plaintiff knew and was aware of it; and, that Kingsberry was under no duty to alter or reconstruct these premises to obviate the known danger. Kingsberry queries us:

so decided as to clearly convince the court that it is wrong and unjust. '' Reed v. Thompson, 225 Ala. 381, 382, 143 So. 559, 560; State v. Smith, 283 Ala. 454, 457, 218 So.2d 266 (1969). We are not so convinced. As we hereinafter indicate, we believe the trial court properly submitted the case to the jury under its instructions, and that the case was one for the jury's determination. The jury having spoken, we will not disturb its verdict. We find no reversible error here.

'What could defendant do to avoid this accident and liability in this case? The only answer can be--Tear down the platform or dismantle the track. Ralston's own testimony ² demonstrated without dispute * * * that Ralston was fully aware of the danger and was thus possessed of all the knowledge that a thorough and timely warning of the danger could have imparted. Kingsberry could only avoid liability by altering or reconstructing its premises to obviate the known and obvious danger, a duty which common sense and the Alabama cases clearly indicate is not owed. * * *' (Footnote ours.)

Kingsberry cites McRee v. Woodward Iron Company, 279 Ala. 88, 182 So.2d 209 (1966), and Claybrooke v. Bently, 260 Ala. 678, 72 So.2d 412 (1954), as being cases with similar facts and authority for its contentions. It adds, 'We would suggest * * * that affirmance of this case requires that this court overrule this line of long standing Alabama cases', viz: McRee v. Woodward Iron Company, supra; Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So.2d 474 (1966); Claybrooke v. Bently, supra; Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937); United States Cast Iron Pipe & Foundry Co. v. Fuller, 212 Ala. 177, 102 So. 25 (1924); Connors-Weyman Steel Co. v. Kilgore, 189 Ala. 643, 66 So. 609 (1914).

In answer to these contentions, appellee Ralston replies that Kingsberry had a duty towards him as an invitee--employee of the railroad--to provide a reasonably safe place to work under the common law, by statute (Title 26, § 12, Code of Alabama 1940), and by the contract. And, whether there was a negligent violation of that duty or whether plaintiff Ralston himself was guilty of contributory negligence because of the so-called 'open and obvious' nature of the danger were jury questions. Ralston also contends this is not that kind of 'open and obvious' danger which is contemplated by the rule. He says notwithstanding the 'close clearance' was visible, the movement of the train was necessary to complete the act resulting in the injury, and this was not 'obvious' because the plaintiff was not required to anticipate such negligent conduct on the part of his fellow servants. Likewise, Ralston argues that the 'no duty' rule contended for by Kingsberry does not apply where the plaintiff is present on the premises as an employee of a common carrier or other public utility since his presence is not dependent on the landowner's permission--the basis for the We do not think it necessary that we attempt to reconcile all these respective contentions. We have set them out in order to demonstrate the scholarly and resourceful approaches which both counsel have taken in this case, and for such benefit as may enure to Bench and Bar in future litigation in this area of the law.

rule, citing Harper and James, The Law of Torts, Vol. 2 (1956 Ed.), §§ 27.13, 27.14, p. 1489 et seq. Finally, Ralston says the 'no duty' rule should not apply when the invitee-plaintiff is obliged by the 'economic coercion' of his job to work at the place where there is some danger or else strike or quit.

We have concluded, after careful study, that the trial court's refusal of the affirmative charge was free of error--that the case was properly submitted to the jury.

We have held in numerous civil cases that 'the question must go to the jury if the evidence furnishes a scintilla in support of (plaintiff's) theory'; and in considering the propriety of refusing the affirmative charge for defendant, we will review those tendencies of the evidence most favorable to plaintiff, regardless of any view we might have as to the weight of the evidence, and must allow such reasonable inferences as the jury was free to draw, not inferences which we might think to be the more probable. Orange v....