Louisville & N.R. Co. v. Williams

• Decision Date: 21 December 1916
• Docket Number: 8 Div. 864
• Citation: 199 Ala. 453,74 So. 382
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. WILLIAMS.

74 So. 382

199 Ala. 453

LOUISVILLE & N.R. CO. v. WILLIAMS.

8 Div. 864

Supreme Court of Alabama

December 21, 1916

Rehearing Denied Feb. 16, 1917

Appeal from Circuit Court, Morgan County; R.C. Brickell. Judge.

Action by P.E. Williams, as administrator of the estate of W.M Williams, deceased, against the Louisville & Nashville Railroad Company, Judgment for plaintiff, and defendant appeals. Affirmed.

McClellan and Mayfield, JJ., dissenting.

Eyster & Eyster, of New Decatur, for appellant.

Tennis Tidwell, of New Decatur, and Sample & Kilpatrick, of Cullman for appellee.

GARDNER J.

Appellee as administrator of the estate of W.M. Williams, deceased, brought this suit against the appellant for recovery of damages for the death of his intestate caused by his being run over by one of the trains operated by appellant.

There were originally five counts in the complaint, but the fifth count went out on demurrer, and counts 1, 2, and 3 were charged out by the court on request of the defendant. The case therefore went to the jury on count 4. This count shows that on August 19, 1912, the defendant was engaged in operating a line of railway through Morgan county; that at a certain point said railway track crossed a creek on a bridge then undergoing repairs by the Williams Construction Company; that said repair work was in progress on each side of the creek at the ends of the bridge, being under the supervision and direction of defendant's civil engineer, one C.A. Ligon; and that the construction company commenced their work on the morning of August 19th, the laborers operating under the superintendence of plaintiff's intestate.

The count further alleges that plaintiff's intestate started across the bridge to look after the work progressing at the northern end; that in so doing he was "in the discharge of his duty with the defendant, and in a place where it was necessary for him to be in the discharge of his said duty." It is then averred that while plaintiff's intestate was thus walking on the bridge one of defendant's passenger trains, approaching from the south, ran upon and killed him. It is further averred that the agents or servants of the defendant in charge of said train owed the intestate the duty to keep a lookout, and that, failing to keep such lookout, they failed to discover him in time to avoid injuring him.

This count was not subject to any of the assignments of demurrer addressed thereto. Plaintiff's intestate in his work was under the supervision and orders of the defendant's civil engineer. Under the following authorities the intestate was an employé of the defendant, in so far as the question here involved is concerned: Dallas Co. v. Townes, 148 Ala. 146. 41 So. 988: Townes v. Dallas Co., 154 Ala. 612, 45 So. 696; Harris v. McNamara, 97 Ala. 181, 12 So. 103; T.C. & I. Co. v. Hayes, 97 Ala. 204, 12 So. 98: Lookout Mt. Co. v. Lea, 144 Ala. 169, 39 So. 1017; Warrior-Pratt Co. v. Shereda, 183 Ala. 118, 62 So. 721. The character of pleading is to be determined from the facts averred. 4 Mayf. 447; Rogers v. Brooks, 99 Ala. 31, 11 So. 753. The facts averred are sufficient, as against any assignments of demurrer interposed, to bring the case under subdivision 5 of the Employers' Liability Act.

Appellant's counsel insist that the count shows that plaintiff's intestate was a mere licensee, and that the defendant owed him no duty to keep a lookout for him, citing Elliott on Railroads, vol. 3, § 1250. This author's treatment of the question in the said section is without application here. In the same volume, in section 1265b, speaking of the duty due by those operating trains to persons lawfully at work on the track, it is said:

"The law does not require persons at work on the track to maintain a constant lookout for approaching trains and at the same time pursue their labor, but it does require of the operatives of trains the exercise of an active vigilance to avoid injuring such persons and that they should give reasonable danger signals to attract the attention of men so employed so as to enable them to get out of the way before it is too late."

To the same effect is the language of Mr. Thompson, in his work on Negligence,§§ 1839-1840, which read in part as follows:

"Persons lawfully at work in repairing a railway track, or in repairing a highway where it crosses a railway track, cannot be expected to pursue their labors and at the same time maintain a constant lookout for an approaching train. They are passive, and are not a source of danger to the train. Those who are driving the train are active, and are handling and in control of the instrument of danger and mischief. The obligation of reasonable care which the law puts upon the railway company under these circumstances therefore demands nothing less than an active vigilance in favor of persons thus lawfully at work upon the track, and the giving of seasonable danger signals to arouse their attention and enable them to get out of the way before it is too late.

"A person employed by one who has entered into a contract with the railroad company to do a job of work upon its road is obviously entitled to this measure of care. *** A person thus employed by an independent contractor is neither a servant of the railroad company nor a trespasser on its track, and, if free from contributory negligence, is entitled to recover for injuries inflicted upon him by the negligence of the servants of the company." See, also, 33 Cyc. 764, where it is said:

"Where one is engaged on or about railway tracks or cars in work which is mutually beneficial to himself and the railroad company, and his work requires him to go on such tracks or cars, his going thereon when required is generally held to be by the express or implied invitation of the railroad company, and he is neither a trespasser nor a mere licensee."

The New York court in a somewhat similar case, replying to the argument of counsel that the deceased was a mere licensee, said:

"The defendant insisted *** it owed the deceased no duty of due care, for the reason that he was a licensee; whereas he was not a licensee, but was there by the express invitation and agreement of the defendant with his employer engaged in doing work for the defendant on its tracks." Froehlich v. Interborough Transit Co., 120 A.D. 474, 104 N.Y.Supp. 910.

See, also, in this connection, L. & N.R.R. Co. v. Thornton, 117 Ala. 274, 23 So. 778; A.G.S. Ry. v. Skotzy, 71 So. 335, and 41 Cent.Dig. "Railroads," § 1225.

The evidence for plaintiff tended to show that, while this track was used by the defendant company, the contract for the repair of the bridge was between the Williams Construction Company, a corporation, and the South & North Alabama Railroad Company, but payment for the work was guaranteed by the defendant railroad company; that the work was to be done under the supervision and direction of defendant's said civil engineer, Ligon, and that plaintiff's intestate was merely superintending the laborers engaged; that Ligon was with the intestate on the bridge giving him directions in regard to the repairs, the two walking together from the south to the north end, but that deceased returned to the south end, where he remained for a few minutes watching the laborers at work just beneath the bridge; that intestate again proceeded to cross the creek, on the bridge, towards the north, to oversee the workers there. The bridge is shown to have been about 160 feet in length and about 15 feet wide.

The evidence for the plaintiff further tended to show that at the time his intestate started to return to the north end of the bridge the train was not in sight nor within hearing, and that he walked in the center of the track; that the train which struck him was a passenger train, approaching from the south and moving at a speed of 40 or 45 miles an hour; and that the track south of the bridge was straight for three-fourths of a mile. Some of the witnesses for the defendant gave the length of straight track as one mile. The evidence further tended to show that the deceased had been walking on the bridge a minute and a half and had gotten about halfway across before the train reached it.

The evidence of the engineer placed the deceased as "two-thirds of the way towards the north end." No signal of approaching was given; the engineer testifying, "I never gave any signal at all before the train was stopped." He insisted that he had kept a constant lookout on the track, and that he did not see deceased until he got within a short distance of him, when deceased stepped from behind an upright brace of the bridge and when it was too late to do anything to save him. The engineer further testified that the track was straight and level, and that if deceased had been in the center of the rails of the track he would have seen him. The accident occurred at about 9:30 o'clock in the morning.

In view of the evidence for plaintiff tending to show the distance the deceased had walked down the bridge, and the time consumed therein, with the track straight and level for a mile toward the south, and of the evidence of the engineer that had deceased been in the center of the track he could have seen him, it was a question for the jury whether those in charge of the approaching train exercised due care in keeping a lookout.

The evidence tended to show that the deceased was rightfully on the track in the discharge of his duty; and, under the authorities above quoted, those in charge of the approaching train were under the duty to keep a lookout. It was admissible for the jury to infer from the evidence that had the engineer kept a lookout he could and would have discovered the deceased on the track in time to give a warning signal, and have had an opportunity to...