Louisville & N.R. Co. v. Naugher

• Decision Date: 13 November 1919
• Docket Number: 8 Div. 186
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. NAUGHER.

84 So. 262

203 Ala. 557

LOUISVILLE & N.R. CO. v. NAUGHER.

8 Div. 186

Supreme Court of Alabama

November 13, 1919

Rehearing Stricken Dec. 24, 1919

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

Suit by Maggie J. Naugher, administratrix, against the Louisville &amp Nashville Railroad Company. From judgment for plaintiff defendant appeals. Reversed, and cause remanded.

Suit by appellee against appellant to recover damages for the death of one Joseph Naugher, resulting in a judgment for the plaintiff, from which judgment this appeal is prosecuted.

The cause was tried upon issue joined upon nine counts of the complaint and the plea of contributory negligence. Count 1 rested for recovery upon the negligence of the engineer in charge, in that he negligently operated and propelled the cars against plaintiff's intestate, and purports to state a cause of action under subdivision 5 of section 3910 of the Code of 1907. Count 2 rested for recovery upon the negligence of one Moore, who had superintendence intrusted to him, in his failure to have stationed at or near the opening between the cars a watchman to give a signal, and purports to state a cause of action under subdivision 2 of section 3910 of the Code. Count 3 alleges the negligence of one McDermott, the engineer in charge of the engine, in that he failed to give a signal of the movement of the cars. Count 4 rests upon the negligence of some person unknown to the plaintiff, charged with the duty of giving a signal of the backward movement of said engine; and count 5 is similar to count 4, except that it relies for recovery upon the negligence of one Ralston who was charged with the duty of giving such signals. The averments of count 6 are similar to those of count 2, with the exception that one Turley is named as the superintendent who failed to have a watchman to give a signal at the opening between the cars. Count 7 purports to state a cause of action under the common-law count, in that the defendant failed to furnish a safe place for the intestate to work, the failure in that respect being that the defendant failed to maintain a watchman near the place where intestate was killed. Count 8 alleges that employés of the defendant were accustomed to cross, in large numbers, in the discharge of their duties the place at the opening between the cars where the intestate was killed, and that his death was occasioned by the negligence of some one unknown, in the service of the defendant, whose duty it was to give the signal for the engine to make the movement propelling the cars together for the purpose of being coupled; and, although the signal man knew that some employé would likely be in a place of great danger, between the cars, he negligently signaled for such movement of the engine and cars to be made, without having taken reasonable means of warning intestate of the danger. The ninth count contains practically the same averments as count 2, and alleges that it was defendant's duty to have established rules providing for warnings or signals to be given at said place, and the defendant negligently failed to establish or promulgate such rules. There were demurrers to each of the counts, which were overruled. The affirmative charge was also asked as to each of the counts; said charges being refused.

The following is so much of the statement of facts made by counsel for appellant in brief as is ordered by the court to be set out:

"The Louisville & Nashville Railroad Company in 1917 maintained shops at Albany, Ala. The deceased, Joseph Naugher, had, at the time of his injury, which occurred on February 6, 1917, been working for the defendant as a car repairer, something over a year. There was a particular department maintained by the defendant, known as the car repairing shop, where cars were built and repaired. A portion of this department was under shed, and a portion in the open. That portion in the shed was where the cars were built. This shed was a rectangular building, and inclosed on the north by a wall and partly on the east and west, the wall on the east and west running north and south, a distance of some four or five car lengths. There were six sets of tracks through the shed, numbered, from east to west, 1 to 6 consecutively, the east track being the one nearest the east wall. These tracks extended through the north wall, and engines and cars were brought under the shed, at least on this particular occasion through the opening in the north wall. The opening in the north wall for track No. 1 was of sufficient size for an engine or car to pass through, leaving a space of some 12 to 18 inches on either side of the car in the entrance. The east wall is a distance of some 6 to 8 feet from the east track or track No. 1. The car repairing and building department was somewhat removed from the other departments. Cars were built on track No. 1, and when completed were moved off the track by an engine coming in from the north end, and pushing the cars through the south end of the shed.

"On the morning of intestate's injury, there were some 10 or 11 new cars on track No. 1, which had been completed, and, having been completed, the operation by which intestate was injured was a movement of these cars, displacing them from track No. 1 so as to make room for the placing of frames and material for the construction of other cars upon this track. This was a customary movement, and was known to the employés, as it had been customary and usual for some time to remove the cars from this and other tracks when completed. The cars on track No. 1 had

been completed the evening before intestate's injury, and intestate had been removed by his foreman from work on this string of cars, and assigned to duties down in the southeast part of the yard, some 400 to 500 feet south of the place where he was injured; the place intestate was assigned to work being east and south of the place of his injury, and some 300 or 400 feet away. It was customary to move these finished cars early in the morning, and this movement was taking place on the occasion of intestate's injury, between 7 and 8 o'clock on the morning of February 6, 1917. There was a space between the cars on track No. 1 between 12 and 18 inches. In other words, while in course of construction a small space was left between the bumpers of each car and along beside this east track, and on each side of it there was a scaffolding suspended from the ceiling, the bottom of the scaffolding being some 6 or 7 feet above the floor of the building, and its arrangement was such that the employés could work on the scaffolding in painting the cars and also doing work on the top of the cars.

"On the morning of February 6, 1917, an engine with its crew of some four or five men came to the building for the purpose of removing these new cars. This engine was on the east track or track No. 1, and was headed south, the engineer being at his place of duty on the right or west side, and the movement of the engine and the crew was to couple up these new cars and shove them on out into the open yard. The engine had two old cars in front of it, and before the movement of coupling the cars commenced the switching crew, composed of T.F. Turley, Ed. Turner, and George Redding, stationed themselves along the string of new cars at intervals, and south of the engine, the engine being in charge of Mr. McDermott. After the crew was lined up along the west side of the string of cars at varying intervals, Mr. Ralston, who was in charge of the movement, went down the string of new cars, opening the knuckles of the bumpers so that a coupling would be made with the contact, and as he opened the knuckles between each car he gave a signal by hallooing, 'Lookout on these cars; we are going to move them.' Ralston started at the north end of the string of cars, and, going in the opening between each car, opened the knuckle and gave this signal until he arrived at the south end of the string of cars. He was engaged from three to five minutes in performing these duties. When he arrived at the south end of the cars, he gave a signal to Turley, who was next to him, and Turley in turn signaled Turner, and Turner in turn signaled Redding, who in turn signaled McDermott, the engineer, to start moving the cars. At this time, the engine was some 50 or 60 feet on the outside of the north end of the shed, and Redding was standing just about the opening of the shed at the north end. McDermott from his position could not see Ralston, Turley, or Turner, on account of being out in the open, and light, and having to look into the shed, which was somewhat darker, and also because the box cars, being in the opening in the north end of the building, obstructed his vision, there being only from 12 to 18 inches space between the side of the box cars and the side of the opening. Before the movement started, the bell on the engine was started to ringing, and continued to ring automatically, and the ringing of the bell was plainly and clearly audible to members of the switching crew stationed along the side of the string of cars, as each one of them testified positively that they heard it; also the witnesses for the plaintiff testified that the bell was ringing. McDermott caused the engine

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