Louisville & N. R. Co. v. Grizzard

• Decision Date: 16 March 1939
• Docket Number: 3 Div. 262.
• Citation: 238 Ala. 49,189 So. 203
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. GRIZZARD.

189 So. 203

238 Ala. 49

LOUISVILLE & N. R. CO. v. GRIZZARD.

3 Div. 262.

Supreme Court of Alabama

March 16, 1939

Modified on Rehearing May 25, 1939.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action under the Federal Employers' Liability Act, 45 U.S.C.A §§ 51-59, by Philip S. Grizzard, Jr., as administrator of the estate of Philip A. Grizzard, Sr., deceased, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.

Affirmed on condition of remittitur.

Steiner Crum & Weil, of Montgomery, for appellant.

Walter J. Knabe and Hill, Hill, Whiting & Rives, all of Montgomery, for appellee.

GARDNER Justice.

Philip S. Grizzard, on December 17, 1936, was an engineer in the employ of the Louisville and Nashville Railroad Company, and in charge, as such engineer, of train No. 3, running between Montgomery and Mobile, Alabama, when he was killed as a result of a head-on collision with train No. 2, standing on the main line track of such road at Castleberry, Alabama: this latter train being in charge of engineer Gorey who likewise met his death in the same accident, as did the fireman on Grizzard's train No. 3.

Admittedly at the time of the collision both Grizzard and the railroad company were engaged in interstate commerce. The administrator of Grizzard's estate instituted this suit under the Federal Employers' Liability Act, 45 U.S.C.A.§§ 51-59, and recovered a judgment in the sum of $22,500, from which the defendant railroad company prosecutes this appeal.

Engineer Grizzard, plaintiff's intestate (to whom, for convenience, we shall refer as "plaintiff"), was a railroad engineer with approximately twenty-five years' experience on the Montgomery and Mobile division of the defendant railroad, and entirely familiar with the several stations, block signals, sidings, trestles, bridges, and other landmarks.

On the morning of the accident his train was south-bound and running over three hours late. The evidence indicates he was entirely normal and in good spirits, and the run to Evergreen from Montgomery was uneventful. At Evergreen plaintiff was handed three orders. The first order No. 63 (complete train 4:08 A. M.) was to the effect that train No. 2 (north-bound, we interpolate) was to meet train No. 3 (plaintiff's train) at Sparta. As No. 3 was the superior train by direction, under that order it would remain on the main line, and No. 2 go in the siding. The next order (No. 64) in point of time (4:17 A. M.) was that train No. 38 should meet train No. 3 at west siding, Castleberry, "No. 3 take siding." Under this order plaintiff was directed to take the west siding at Castleberry. The last order (No. 71), in point of time (4:50 A. M.), superseded the first or order No. 63, and directed that train No. 2 meet No. 3 "at Castleberry instead of Sparta, No. 3 taking siding. No. 2 gets this at Castleberry."

At Castleberry there are two sidings, known as the east and west siding, and approaching Castleberry, going south, the east siding is reached several hundred feet in advance of the beginning of the west siding.

While order No. 71 directed No. 3 to take the siding, it did not designate either one or the other of these two sidings. These three orders were handed, one set to the conductor Gantt, and one to plaintiff at Evergreen by the operator Brooks, the conductor receiving his in the office, and plaintiff while walking from his engine towards the office. Plaintiff unfolded the order, and asked Brooks to hold up his light and then read them. After reading order No. 64, he said: "That's 38 at the west siding Castleberry: we take the siding." He then read order No. 71, and said "That's No. 2 at Castleberry: we take the siding and they get it there." Brooks replied, "That's right," and plaintiff said, "All right, Brooksie, we will do it." Brooks, witness for defendant, further testified: "Mr. Grizzard and I had no other conversation about the sidings, as to which siding or what siding. That was not discussed. Mr. Grizzard looked at the orders and said, 'We take the siding at Castleberry.' One of the orders said west siding at Castleberry for 38, and he said, 'that puts us in the west siding for 38 at Castleberry.' "

The weather at Castleberry on this particular morning was intensely foggy, conductor Gantt stating, "You couldn't scarcely discern anything with absolute certainty further than ten feet."

When the collision occurred plaintiff had not reached the entrance to the west siding or passing track, the point of collision being some 124 feet therefrom. The two engines weighed approximately 230,000 pounds each, and the impact as a result of the collision was great, demolishing these engines and the two cars back of each, and also destroying the water tank from which Gorey's engine of No. 2 train was taking water, though no passenger coach was derailed.

Plaintiff's case is rested upon the theory that the issuance of orders No. 64 and No. 71, by the train dispatcher Coburn, were misleading and confusing (order No. 63 having been superseded, and here properly ignored), constituting negligence which proximately caused the collision.

Defendant insists these orders were entirely clear and proper, in no manner misleading or confusing, and that in fact the accident was due solely to plaintiff's own negligence in driving his engine at a fast and reckless speed, and in disregard of warning signals, and in violation of all rules of safety, and that there is no way to account for or explain plaintiff's actions, except to say he was asleep or physically incapacitated.

The trial court considered the evidence sufficed for a submission of these issues for the jury's determination, and the refusal of the affirmative charge duly requested by defendant presents the most important question here for consideration.

There are involved no controverted legal principles. Confessedly, the trial court was to apply federal law to a federal statute, and the case is controlled by well settled principles established by the federal decisions. There is no presumption of negligence in such cases. The burden is on the plaintiff to show negligence. The scintilla doctrine is inapplicable to this case. Louisville & Nashville R. Co. v. Finlay, Ala.Sup., 185 So. 904.

The negligence complained of must be the cause of the injury, and the jury is not permitted to speculate. "The case must be withdrawn from its consideration unless there is evidence from which the inference may reasonably be drawn that the injury suffered was caused by the negligent act of the employer." Atchison, Topeka & Santa Fe R. Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281, 282, 74 L.Ed. 896; Patton v. Texas & Pacific R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Northwestern Pacific R. Co. v. Bobo, 290 U.S. 499, 54 S.Ct. 263, 78 L.Ed. 462; Southern R. Co. v. Miller, 226 Ala. 366, 147 So. 149; Alabama Power Co. v. Pierre, 236 Ala. 521, 183 So. 665.

And contributory negligence is no bar to a recovery unless it is the sole proximate cause of the death. "The rule is well established that, under the Federal Employers' Liability Act, if the injury resulted 'in whole or in part' from defendant's negligence, the cause of action is established, and that contributory negligence on the part of the employé is not a bar to recovery, but 'to be considered in mitigation of damages only.' Plaintiff's negligence, contributing with defendant's negligence, in the production of the injury, does not defeat the cause of action, but only lessens the damages." Davis v. Sorrell, 213 Ala. 191, 104 So. 397, 399.

But plaintiff had control and management of his engine, and its proper control and management constituted his primary duty, and if his death was directly due to his failure to discharge this primary duty, recovery may not be had on the ground that possibly it might have been prevented if those in secondary relation to the movement had done more. This is the rule applied in the federal decisions (Davis v. Kennedy, 266 U.S. 147, 45 S.Ct. 33, 69 L.Ed. 212; Unadilla Valley R. Co. v. Caldine, 278 U.S. 139, 49 S.Ct. 91, 73 L.Ed. 224; Great Northern R. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732; Southern R. Co. v. Youngblood, 286 U.S. 313, 52 S.Ct. 518, 76 L.Ed. 1124), and given application by this Court in Davis v. Sorrell, supra.

And it may be conceded, plaintiff in this case assumed all risks, ordinary and extraordinary, incident to his employment, including those due to the negligence of his employer and fellow employee that were open and obvious, or known or appreciated, and assumption of risk is a complete defense in bar under the Federal Employers' Liability Act. Seaboard Air Line Ry. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475; Missouri Pacific R. Co. v. David, 284 U.S. 460, 52 S.Ct. 242, 76 L.Ed. 399; Delaware, Lackawanna & Western R. Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202, 73 L.Ed. 578. And where a rule of the employer, known to the employee, is in force and its terms are clear and unambiguous, the interpretation or construction of the rule is for the court, not the jury. Bradley v. Deaton, 208 Ala. 582, 94 So. 767. But when the rules are ambiguous, competent witnesses may explain them in ordinary every day practice. Louisville & Nashville R. Co. v. Jacobson, 218 Ala. 384, 118 So. 565; 22 Corpus Juris 548; 39 Corpus Juris 1165; 64 Corpus Juris 363.

Coming to a consideration of the proof, we are persuaded plaintiff made out his case of negligence in the issuance by Coburn the train dispatcher, of orders 64 and 71 as misleading and confusing. We think it clear enough that plaintiff, as engineer in charge of train No. 3, understood from these orders that he was...