Louisville & N. R. Co. v. Vickery

• Decision Date: 08 June 1972
• Docket Number: 1 Div. 647
• Parties: LOUISVILLE & NASHVILLE RAILROAD CO. v. Charles Webb VICKERY.
• Court: Alabama Supreme Court

Page 656

263 So.2d 656

288 Ala. 555

LOUISVILLE & NASHVILLE RAILROAD CO. v. Charles Webb VICKERY.

1 Div. 647.

Supreme Court of Alabama.

June 8, 1972.

Hand, Arendall, Bedsole, Greaves & Johnston, and Jerry A. McDowell, Mobile, for appellant.

Cunningham, Bounds & Byrd, Mobile, for appellee.

Inge, Twitty, Duffy & Prince and John N. Leach, Jr., Mobile, for non-appealing defendant.

PER CURIAM.

In his amended complaint, Charles Webb Vickery sued Louisville & Nashville Railroad Company and Sperry Rail Service, a division of Automation Industries, Inc., to recover damages for personal injuries.

A jury of Mobile County rendered a verdict in favor of Vickery against L. & N. alone in the amount of $150,000. Judgment was in accord with the verdict.

After its motion for new trial was denied, L. & N. appealed to this court from the original judgment and from the judgment denying its motion for a new trial.

Vickery, a long-time employee of L. & N., was seriously injured on May 4, 1968, when a Sperry Rail Service test car, in which he was riding, struck a partially opened drawspan of L. & N.'s drawbridge over Bayou Sara in Mobile County.

As against L. & N., Vickery's suit is under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.). His complaint contains two counts, the first charging the defendant, L. & N., with negligence in the operation of the drawspan; and the second charging L. & N. with negligence in directing Vickery to assist in the movement of the Sperry test car when it knew or should have known that he was unfit, because of his training and experience, to assist in such movement.

L. & N. argues only three assignments of error.

Assignment of Error 19 reads:

'The Trial Court erred in overruling the defendant Louisville & Nashville Railroad Company's objection to a question propounded to R. E. Duncan, a witness for the plaintiff, as follows, (Tr. 202):

'Q. Do you have an opinion, Mr. Duncan, as to whether such action of the railroad in placing this man on that Sperry car was safe or unsafe practice?'

The question involved in Assignment 19 was merely introductory to the further examination of the witness. It was proper for the plaintiff to establish that the witness had an opinion in regard to the matter before asking him to state his opinion. The question called for a simple yes or no answer as to whether the witness did have an opinion. It was not reversible error to overrule the objection interposed thereto. See Grooms v. State, 228 Ala. 133, 152 So. 455; Hunt v. State, 248 Ala. 217, 27 So.2d 186; Stokley v. State, 254 Ala. 534, 49 So.2d 284; Empire Coal Co. v. Goodhure, 200 Ala. 265, 76 So. 31.

'This man,' referred to in the question, was not properly identified in the question and if objection on that ground had been sustained we would not reverse. See Sanford v. State, 143 Ala. 78, 39 So. 370; Strickland v. State, 151 Ala. 31, 44 So. 90. But that deficiency was not pointed out in the objection interposed.

We hold that Assignment 19 presents no cause for reversal of the judgment below. Assignment of Error 24 is as follows:

'The Trial Court erred in overruling defendant Louisville & Nashville Railroad Company's objection to a question propounded to R. E. Duncan, a witness for the plaintiff, as follows, (Tr. 211, 212):

'Q. Mr. Bounds: It's the very point, Mr. Duncan. Would you consider it safe practice to operate a train, a Sperry car or other comparable equipment under rules that govern the operation of motor cars?'

The question involved in Assignment 24, unlike the question involved in Assignment 19, does not call merely for a yes or no answer as to whether the witness had an opinion. It calls for a statement of the witness's view, his judgment or his opinion as to whether or not it was safe practice to operate the described machinery under certain rules.

Before consideration is given to the merits of Assignment 24, reference will be made to the evidence which tends to describe a 'Sperry car' and which tends to define the 'rules that govern the operation of motor cars,' usually referred to as motor car rules.

A Sperry car is a large self-propelled machine. It weighs approximately seventy-two tons and is fifty-seven feet long. It looks somewhat like a streetcar or a diesel locomotive. It can be operated at a speed as high as fifty miles an hour or higher. It has living quarters and a kitchen. Its crew can consist of as many as four of Sperry's employees--operator, assistant operator, supervisor and steward. It is equipped with 'complicated equipment' used in the testing of rails, which is its function. Such cars are used by most, if not all, of the railroad companies in this country.

The actual movement of a Sperry car is handled by the Sperry Company operator, but such car is not moved over the tracks of a railroad company in the absence of an employee of that company who is supposed to keep the Sperry operator advised as to signals, if applicable, safe speed, curves and bridges, as well as right of movement under the specific orders given him by the railroad.

The employee so furnished by the railroad is referred to as a pilot and is apparently charged with responsibilities similar to those assumed by persons who conduct vessels into and out of a port.

Shortly prior to the accident, Vickery, the plaintiff, had been assigned by L. & N. to serve on board the Sperry car as a pilot.

A motor car is apparently the piece of equipment which has taken the place of the old handcar operated only by manpower. It is comparatively small and light. It can be lifted from and replaced on a track by its crew. Its maximum speed is thirty miles an hour and should be operated at such a speed that it can be stopped within one-half the range of vision.

Motor car rules do not apply to trains, locomotives and similar equipment but, in addition to motor cars, those rules apply to on-track equipment such as cranes, track tampers, and other machines used in connection with the repair and maintenance by the railroad of its tracks. Such equipment can be operated by a section foreman such as Vickery or some other qualified person in the maintenance-of-way department of the railroad. Engineers and conductors are not needed in the operation of such equipment.

The evidence tends to show that under motor car rules the operator of the equipment is not expected to comply with the signals which affect the movement of trains. He has the right to assume that for a given distance and time his movement will not be jeopardized by an oncoming or following train. Otherwise, the operator is on his own, so to speak. He must keep a lookout for other motor cars, switches, curves and bridges, and is expected to restrict speed to the point where he can stop the moving equipment within one-half the range of his vision.

As heretofore indicated, trains manned by engineers, conductors, flagmen and brakemen are operated under entirely different rules.

With the foregoing evidentiary background, we come to consider L. & N.'s argument made in support of its Assignment of Error 24.

L. & N. says that the witness Duncan was not shown to have been qualified to express an opinion as an expert as to whether or not it was safe practice to operate a Sperry car under rules that govern the operation of motor cars.

The evidence shows that Duncan had been a locomotive engineer for the Southern Railway for thirty-four years, having operated during that period of time every type of locomotive from steam 'on up to the present day modern diesel.' He had operated over L. & N. tracks. He was familiar with Sperry test cars and their movement over the Southern lines in 'this area.' He accurately described the general characteristics of such cars. He was shown to be familiar with motor cars and compared them to Sperry test cars. In his view a Sperry test car is a train and should have a qualified pilot, a trained engineer or conductor, on board when it is moved over tracks unfamiliar to the Sperry operator. He served as such a pilot on many occasions. He was familiar with the difference between 'a motor car lineup as opposed to some other type lineup,' tantamount to a difference between motor car rules and train rules. He had examined the motor car rules of L. & N.

It is our view that the evidence last summarized above was sufficient to justify the trial court's action in permitting the witness Duncan to testify as an expert in regard to the safe manner in which Sperry cars are or should be operated. The fact that his work had been with the Southern Railway and in its operating department, that is, as fireman and engineer rather than in the maintenance-of-way department, is not controlling.

It has been said that the examination of expert witnesses is, of necessity, largely discretionary with the trial court, and its decision as to competency will not be disturbed on appeal except for palpable abuse. Russell v. Relax-A-Cizor Sales, Inc., 274 Ala. 244, 147 So.2d 279, and cases cited; Alabama Consolidated Coal & Iron Co. v. Heald, Adm'r, 168 Ala. 626, 53 So. 162.

This court finds no abuse of the discretion in this instance.

L. & N. also contends that 'the question to which the objection was lodged is invasive of the province of the Court and the jury, and is not a question that calls for expert testimony, even if Mr. Duncan was an expert.'

The rule governing admissibility of expert opinion is that such evidence should not be admitted unless it is clear that the jurors themselves are not capable, from want of experience or knowledge of the subject, to draw correct conclusions from the facts proved. It is inadmissible on matters of common knowledge. Alabama Great Sou. R.R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, and cases cited.

The strict question with regard to the testimony sought to be elicited from the witness Duncan is whether or not an average juror would be capable of forming a correct conclusion from the evidence adduced as to...