Louisville & N.R. Co. v. Williams

• Decision Date: 02 February 1911
• Citation: 55 So. 218,172 Ala. 560
• Parties: LOUISVILLE & N. R. CO. v. WILLIAMS.
• Court: Alabama Supreme Court

55 So. 218

172 Ala. 560

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

Supreme Court of Alabama

February 2, 1911

Rehearing Denied May 5, 1911.

Appeal from Circuit Court, Autauga County; E. J. Garrison, Judge.

Action by Joseph S. Williams against Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Goodwyn & McIntyre, Geo. W. Jones, and J. M. Foster, for appellant.

Hill Hill & Whiting, for appellee.

MAYFIELD J.

The original complaint contained nine counts, and a tenth one was added by amendment; but all were voluntarily withdrawn by plaintiff, except the first, third, sixth, and ninth. The court gave the affirmative charge for the defendant as to the ninth count. The three remaining counts declared upon simple negligence, and to these the general issue and contributory negligence were pleaded. Hence no issues or questions as to wanton negligence, willful injury, or subsequent negligence are involved.

Plaintiff was an employé of the Marbury Lumber Company, the plant of which was located near the main line of the defendant's railroad, from which main line defendant had constructed a spur track about 400 yards in length, which extended through the yards or grounds of the lumber company, passing between its sawmill and its planing mill (they being located in different buildings or sheds). This spur track was constructed for the use and convenience of the lumber company. The railroad company would, as needed, place empty cars on this spur track; and when loaded by the lumber company it would take them out for shipment on its line of roads. These loaded cars were removed and empty cars replaced once a day, or oftener, by the defendant railroad company. These cars were put in and taken out by means of the ordinary locomotives used for handling freight on defendant's main line.

Plaintiff had been employed by the lumber company and worked in and around its plant through which this spur track was operated and was, of course, familiar with its location, use, etc., by the defendant and the lumber company. There were no walls between the planing mill and the spur track; there was a distance of about 3 1/2 feet from the side of the planing mill to the first rail of the spur track. For about one year on the side of the planing mill next to the spur track, there had been stacked a pile of lumber six or seven feet high. From the planing mill, there was a path leading across the spur track to the sawmill. On account of the pile of lumber referred to, one following the path that crossed the spur track from the planing mill to the sawmill could not see between this point and the main track, until he got very near the spur track. If the lumber had not been stacked there, there would have been an unobstructed view of the spur track towards the main line for a distance of 175 feet.

The plaintiff, Williams, was a feeder in the planing mill at machine No. 1, which was next to and about seven feet from the spur track. He had worked here for about three months prior to the time of the accident. Occasionally lumber was thrown upon the spur track, and at times in great quantities. It was the duty of the feeders and graders employed in the planing mill to remove the lumber from the spur track. There were no special men employed for this purpose. At the direction of his foreman, plaintiff had at times assisted in doing this work.

The distance, from the point where plaintiff was employed to work in the planing mill to the main line of defendant was about 150 yards. The place of the accident was about 200 yards from the main line. When the sawmill and the planing mill were both in operation, cars moving along the spur track could not be heard. At the time of the accident, both mills were in operation.

On the day of the accident, the defendant used the spur track twice. There was no lumber on the spur track. On each occasion the same train crew were in charge of the cars of defendant. The first time the cars came into the spur track, they were attached to an engine. On the occasion of the accident, a cut of four empty cars was "kicked in" from the main line into the spur track. No engine was attached to these cars. There was no one on the front end of the first, second, or third car. There was one man on the top of the fourth car. The cars were "kicked" to go about 400 yards, and in opinion of plaintiff's witnesses were going at the rate of eight or ten miles an hour. No signal of the approach of the cars was given.

The plaintiff testified as follows:

"That his name was Joseph S. Williams; that he had instituted this suit against the defendant; that on or about October 22, 1907, he was an employé of the Marbury Lumber Company, which had a sawmill and plant in Autauga county; that it was engaged in the sawmill business and operated a lumber plant at Marbury, Ala.; that the spur track ran into the plant of the Marbury Lumber Company and on its property; that the defendant operated its cars on this track; that plaintiff was struck by one of the cars of defendant operated by the defendant on this track; that he was employed at machine No. 1, about seven feet from the spur track; that there were five machines in a row running 'perpendicular' to the spur track; that witness was on the machine closest to the spur track; that the shed over the top of the planing mill extended about two feet; that his machine was about seven feet from the spur track; that there was a walkway across the spur track at the end of his machine; that his duties were to feed that machine, to keep sawdust from under it, and to keep the spur track clean, and to keep the lumber off of it; that he was ordered to do this by the foreman; that Mr. Jenkinson hired him and put him under Mr. Dormen, the planing mill foreman; that while in the discharge of such duties he received some injuries for which he brought this suit; that he worked for them for about three months; that he had worked for them about three years before; that he was injured on the crossway over the spur track; that the crossway was level with the planing mill; that the track at the crossway was much frequented at that time, and before then for several years, and many people passed there; that the track was used then to put lumber on, going from the yard to the planing mill.

"Whereupon plaintiff's attorney asked plaintiff the following question, 'How often were the people on there then, and before then--the employés of the Marbury Lumber Company?' To the asking of this question, the defendant objected, which objection was overruled by the court, and to the action of the court in overruling said objection the defendant then and there duly and legally reserved an exception. Plaintiff then answered that the people crossed there at all times, and the trucks with the lumber stacked on; they had to carry them out that way. Witness, in response to another question, swore that he expected that people passed there going to the sawmill and machine shop every minute in the day.

"Witness further testified that it had been the case ever since he had been there about three years; that there was an obstruction to the view of the spur track; that it consisted of some old lumber; that he did not know the distance from the lumber to the box cars when a box car was on the spur track; that he never did measure it; that there was just room enough for a box car to go through on both sides; that this obstructed his view of the spur track down towards the main line, and that the car that injured him came from the direction of the main line; that in order to see down towards the main line one would have to step out on the track; that there was just room there for a box car to pass the lumber; that this lumber had been there ever since witness had been there; that there was no noise made by the train at the time and before the time witness was injured; that the sawmill and planing mill were in operation, making noise within a few feet of him; that he could not hear a car coming; that you could not see a car coming until you got up on the track, unless you stopped and looked around, and stuck your head out; that if he stuck his head out that his head would be in the way of the car that came by; that just as he went there a car struck him; that he was injured between 1 and 2 o'clock in the daytime; that both mills were in full blast and operation; that just before he went out on the track he had been working at his machine; that his lumber gave out; that he asked John Norrell if there was any more for him, and that John said, 'No,' and that witness said to John that there was some out there; that Norrell got up, and that witness grabbed him by the side, and that Norrell grabbed witness by the leg; that witness put his hands around Norrell's shoulder, and that Norrell put his arms around him, and that they went to the place; that the walkway was about three feet wide; that on one side was old lumber and on the other was new lumber; that there was some lumber out on the side tracks at the time he went out; that Norrell and he had played in the plant before they had started out; that they had quit playing when they started across the track, but that Norrell had his arm around him, and that he had his arm around Norrell when they started out across the track.

"Whereupon plaintiff's attorney asked witness the following question, 'Where were you going?' To the asking of this question, defendant objected, which objection was overruled by the court, and to the action of the court in overruling said objection defendant then and there duly and legally reserved an exception. Plaintiff answered that he was going across the track after some five quarter stuff stacked up there; that he

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