Louisville & N. R. Co. v. Green, 6 Div. 872
| Decision Date | 14 June 1951 |
| Docket Number | 6 Div. 872 |
| Citation | 53 So.2d 358,255 Ala. 642 |
| Court | Alabama Supreme Court |
| Parties | LOUISVILLE & N. R. CO. v. GREEN. |
Chas. H. Eyster, Decatur, and Gibson & Gibson, Birmingham, for appellant.
Taylor, Higgins, Windham & Perdue, Birmingham, for appellee.
This is an action under the Federal Employers' Liability Act to recover damages for personal injuries. 45 U.S.C.A. § 51, et seq.
The case is of course governed by the Federal decisions, and, as construed by these decisions, the Federal Employers' Liability Act does not make the employer the insurer of the safety of its employees while on duty. The basis of liability is the negligence of the employer, not the fact that injuries occur. Negligence must be 'in whole or in part' the cause of the injury. Atlanta, B. & C. R. Co. v. Cary, 250 Ala. 675, 35 So.2d 559, 560; Reynolds v. Atlantic Coast Line R. Co., 251 Ala. 27, 36 So.2d 102.
Count one of the complaint, the only count submitted to the jury, alleged in substance that plaintiff was employed by defendant in interstate commerce, as a night station porter at Athens, Alabama, on to wit, 19th of October, 1946; that on or about said date, while so employed, he suffered a double rupture and consequent damages, and that his said injury and damages were the proximate result of the negligence of defendant's servant, servants, agent, agents, employee, or employees, in failing to furnish plaintiff with sufficient help to perform the duties of his employment.
Defendant entered plea of the general issue, in short by consent with leave, etc.
The jury returned a verdict for the plaintiff, and after defendant's motion for a new trial was overruled this appeal was perfected.
The refusal of the affirmative charge, with hypothesis, to appellant necessitates the examination of the evidence.
The applicability of the Federal Employers' Liability Act is not questioned. Appellee was employed by appellant as night station porter at its railroad station in Athens, Alabama, and had been regularly so employed since 1940. The duties of his employment required him to handle the mail and baggage arriving at and departing from the station and to transport mail between the United States post office and appellant's station at Athens, and to perform certain other duties around the station. He suffered a double rupture on the morning of October 19, 1946, while handling a sack or bag of mail preparatory to its being loaded on the mail car of a train operated by appellant. At the time he was about 63 years of age, weighed about 172 pounds and had been in good health up to the date of his injury. For transporting the mail between the railroad station and the post office at Athens appellant furnished appellee with two types of conveyances, one, a four-wheeled, rubber-tired platform truck about 9 or 10 feet long, 3 feet wide and 3 feet high. The other a two-wheeled cart. Both conveyances were operated by hand, that is, pushed or pulled by appellee. At the time he was injured appellee was loading the four-wheeled truck with mail bags preparatory to putting them on the train. About 50 bags had been placed on the truck. He attempted to place a bag weighing 100-115 pounds on top of the load piled on the truck but it fell somewhat short of the top and came to rest at about the height of appellee's shoulders. He then attempted to push or heave the bag to the top of the load, a point some twelve inches higher than appellee's head, and when he did so he felt a sudden and sharp pain in both sides of his abdomen. The evidence further showed that appellant's hours of employment were from 10:00 P.M., on one day to 6:00 A.M., the following morning. During appellee's hours of employment four trains arrived at and departed from Athens as follows:
Scheduled Time
Train No. Direction Traveling of Arrival
--------- ------------------- --------------
4 North 11:49 P.M
7 South 2:05 A.M
8 North 2:30 A.M
1 South 4:42 A.M
Some of these trains carried mail in addition to mail destined for Athens, called 'turn-around' mail, that is, mail which came in on a train going in one direction and was unloaded at Athens and then placed on another train going in the opposite direction. It was, therefore, appellee's duty to sort the mail bags arriving on certain trains into two lots, i. e., mail destined for Athens, and 'turn-around' mail. The mail destined for Athens was delivered by appellee to the post office at Athens, and the 'turn-around' mail was retained at the station for reloading on the proper train. The evidence further showed that the volume of mail handled by appellee between the post office and station (not including 'turn-around' mail) immediately prior to the time appellee was injured was approximately as follows:
Number of Bags Approximate
Train No. Incoming Outgoing Weight
--------- -------- -------- -----------
4 12 30
7 40 1 1200 lbs.
8 50 1 1500 lbs.
1 6 1
The evidence further tended to show that the post office in Athens was approximately a quarter mile distant from appellant's station, and that the streets from the post office to the station were paved; that there was a slight upgrade a part of the way from the station to the post office; that Mr. W. E. Flood was the station agent at Athens, and appellee worked under his supervision; that Mr. E. H. Civils, Jr., was the trainmaster of the Nashville division of appellant's railroad; that prior to appellee's injury he had made protest to Mr. Flood and Mr. Civils that he needed help on the job or that the work was too heavy, but that no assistance was furnished him. The evidence further tended to show that the average weight of the bags of mail handled by appellee was about 30 pounds, and that postal clerks regularly and usually handled the bags without assistance, and that appellee had not complained that the bags of mail were too heavy for him to handle; that no one told appellee how heavy a load to load and transport at each trip to and from the post office; that he was free to place whatever number of bags of mail on each load and use either the four-wheeled truck or the two-wheeled cart; that there were two or three other four-wheeled trucks at the station which he could use in handling the mail, and that no one told him how to handle the bags of mail; that he had at least 2 hours idle time during his shift or tour of duty and there is nothing in the record to indicate that the element of time was a factor in causing appellee to load all the outgoing mail bags on one truck or to pile them high on one truck. In other words, appellee had ample time, in handling the mail, to make as many trips to and from the post office as he desired, and in handling the mail at the railroad station preparatory to loading it on the trains, to use more than one truck if he desired. The evidence further showed that the volume of mail during the war years was much heavier than at the time he was injured; that appellee always handled the mail by himself except at Christmas time, and upon some occasions when he hired some one to assist him.
The gist of this action is the negligence of the railroad company in its failure to provide appellee with sufficient help to prevent that class of hazards which result from an inadequate force to do the work in hand, and that such failure is, in whole or in part, the cause of appellee's injury. Seymour v. Holman, 229 Ala. 634, 158 So. 525; Reynolds v. Atlantic Coast Line R. Co., 251 Ala. 27, 36 So.2d 102. But negligence on the part of the employer is not presumed. The evidence to sustain the claim must be of a substantial sort, not a mere scintilla, and it cannot be predicated on conjecture or speculation. The inference of negligence must be from a reasonable and fair interpretation of the evidence. If the evidence does not fairly show negligence, and that such negligence was the proximate cause, in whole or in part, of the injury plaintiff cannot recover. Alabama Great Southern R. Co. v. Davis, 246 Ala. 64, 18 So.2d 737; Atlanta, B. & C. R. Co. v. Cary, 250 Ala. 675, 35 So.2d 559; Reynolds v. Atlantic Coast Line R. Co. supra. The cases establishing those principles have often been cited and are fixed by the act itself as...
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