Kirby v. Louisville & N.R. Co.

• Decision Date: 23 April 1914
• Docket Number: 736
• Citation: 65 So. 358,187 Ala. 443
• Parties: KIRBY v. LOUISVILLE & N.R. CO.
• Court: Alabama Supreme Court

65 So. 358

187 Ala. 443

KIRBY v. LOUISVILLE & N.R. CO.

No. 736

Supreme Court of Alabama

April 23, 1914

Rehearing Denied June 4, 1914

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by H.L. Kirby, administrator, against the Louisville &amp Nashville Railroad Company. From an order granting defendant's motion for new trial, plaintiff appeals. Affirmed.

Callahan & Harris, of Decatur, for appellant.

Eyster & Eyster, of New Decatur, for appellee.

MAYFIELD J.

This is an action by the administrator, under the Employers' Liability Act, to recover damages for alleged wrongful death of plaintiff's intestate, who was a servant of defendant appellee here.

Deceased was employed by the defendant in the boiler department of its railroad shops at Decatur. The motive power used in this department was compressed air, which was stored in a tank or drum from which radiated pipes which transmitted the air to different parts of the shop. One of these pipes entered the toolroom. To this pipe was attached a hose, and the compressed air was admitted into this hose by turning a lever or screw. The hose was about one-half to three-quarters of an inch in diameter, and the pressure of air therein was from 75 to 90 pounds to the square inch.

The deceased, together with a number of his fellow workmen, was in the toolhouse resting, as was their custom to do, at the particular time of the accident. The deceased was lounging on the floor of the toolhouse, and one Pigue, a fellow employé of deceased, was playing with the air hose. Pigue was a witness, and described the accident and death as follows:

"I was a boiler maker and Mr. Kirby was a helper, and Mr. Thornhill was foreman in the boiler making department. I was present on the night of February 16th, when Mr. Woody Kirby was injured and subsequently died. The injury was between 12 and 12:30 at night. That was the supper hour, when we would eat our midnight lunch, and it was the custom that the employés would lay off at that hour for that purpose. At the time Mr. Kirby was injured we were in the toolroom; that is, the toolroom in the boiler shop. The injury happened in this way: We were all in the toolroom as we usually are lots of times, and after we had eaten supper we were lying down there taking a rest, and I had the air hose playing with it and Mr. Kirby said, 'Stick them hose in me and blow me up,' and I said, 'Flippo, hold him and I will do that,' and Flippo said, 'I won't do it,' and I just shoved the hose down to him, and it was done in a half minute. He raised up. There was an immediate effect, just at once. You could see he was hurt. He threw up his supper right now."

"The hour called the midnight noon hour, when we would eat our supper, was the hour that we were off duty. We were not on duty at that time. It was in play--we taking up the rest hour. As I said awhile ago, we were playing, and I had the hose playing with it, and he was laying down there and he says, 'Stick that hose in me and blow me up,' and I said, 'Flippo, hold him and I will do that,' and Flippo said, 'I won't do that.' Flippo is my partner. We work together. I am a boiler maker and he is my helper. And Kirby looked at me and said, 'Come on if you are coming,' and he was kicking at me. He was laying on his back, and I stuck the hose between his limbs, and it wasn't there a second before I seen that something had happened. His face turned as red, and he throwed up his supper, and I asked him what was the matter with him, and, as soon as he could speak, he said, 'You have killed me.' Mr. Vohlers is the roundhouse foreman. I use the air testing tools lots of times. Sometimes I would go in there and test my own tools. I had seen the air turned on others the same way and it never had any bad effect on them."

The complaint proceeded upon two theories: First, that the compressed air was a dangerous agency, that it was used in such a way as to be alluring to the defendant's employés, that the defendant knew of the dangers, and that the employés did not, and that a duty was thereby imposed upon the master to warn the servants, which duty was not performed; second, that, the agency being a dangerous one, which attracted or allured the servants, the duty rested on the master to so guard it as that accidents like the above one narrated would not occur, and that the master failed to perform or discharge this duty, and that such failure proximately resulted in the death of plaintiff's intestate.

It is conceded by counsel for plaintiff, appellant here, that there can be no recovery as for the negligence of a fellow servant, or under any one of the five subdivisions of the Employers' Liability Act. Section 3910 et seq., of the Code.

The duty and the liability, if such there be, are common-law, and not statutory, ones. In other words, it is conceded by counsel for appellant that the negligence relied upon was that of the master, and not that of a fellow servant; and that the statutes have nothing to do with the case, except in so far as they authorize actions for wrongful death of servants.

The trial court submitted the case to the jury on the pleadings, the evidence, and the instructions, and the jury returned a verdict for the plaintiff.

The defendant moved the court for a new trial, which motion was granted, and, from the ruling granting the motion, the plaintiff presents, under our statute, this appeal.

The trial judge, unless he changed his mind after the verdict, acted upon the theory that there was a scintilla of evidence sufficient to require the case to be submitted to the jury, but not enough to support the verdict and judgment for the plaintiff.

The record has been here examined very carefully, and we find no evidence to justify the trial court in submitting this case to the jury. The trial court should have directed a verdict for the defendant, because there was no evidence to support a verdict for the plaintiff. Hence, of course, there was no error in setting aside the verdict and awarding a new trial. It would have been reversible error to have declined to do so on the defendant's motion to that end.

There is no evidence in this record which shows, or tends to show the breach of any duty on the part...