Louisville & N.R. Co. v. Manning

• Decision Date: 18 January 1951
• Docket Number: 6 Div. 873
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. MANNING.

Page 153

50 So.2d 153

255 Ala. 43

LOUISVILLE & N. R. CO. v. MANNING.

6 Div. 873.

Supreme Court of Alabama.

Jan. 18, 1951.

Chas. H. Eyster, of Decatur, and Gibson & Gibson, of Birmingham, for appellant.

Taylor, Higgins, Windham & Perdue, of Birmingham, for appellee.

BROWN, Justice.

This is an action of trespass on the case by an employee against the master under the Federal Employers' Liability Act. 45 U.S.C.A. § 51 et seq. The case went to the jury on Count 'A' of the complaint, which embodied the following averments as to the character and extent of plaintiff's injury and damage: 'Plaintiff's head was badly cut, bruised and injured, and he was caused to sustain a concussion of the brain and was permanently injured, he was made sick and sore and was caused to suffer great physical pain and mental anguish, his nervous system was shocked and impaired, was permanently shocked and impaired, he was caused to lose time from his work and lost money thereby, and was caused to incur expense in and about his efforts to heal and cure his said wounds and injuries, and plaintiff was permanently disabled and was renered permanently less able to work had earn a livelihood.'

Said complaint ascribed plaintiff's injury and damage to the negligence of a servant, agent or employee of defendant, acting within the line and scope of his employment at said time and place, in negligently causing or negligently allowing said large and heavy piece of flooring to strike plaintiff on his head.

The defendant pleaded the general issue in short by consent with leave to give in evidence any matter which if specially pleaded would constitute a defense to the action, with leave to the plaintiff to reply by giving in evidence any matter which would be an answer to the matter if so specially pleaded.

On the issues formed by the averments of Count 'A' and the plea interposed, the case was submitted to the jury, resulting in a verdict for plaintiff assessing his damages at $35,000.00. This verdict, on motion made in due course by the defendant, was held to be excessive by the trial court and reduced conditionally to $12,500. Upon a remittitur being filed by the plaintiff, remitting the damages to said sum, the motion for a new trial was overruled.

The evidence was without dispute that on November 13, 1947, the plaintiff was an employee of the defendant and was working as a car repairer or carpenter, engaged with another employee of the same class, a Mr. Walls, in flooring a boxcar with creosoted gum lumber in boards 9 ft., 4 inches in length, 5 1/4 inches in width, and 2 1/2 inches thick. Each of said pieces of flooring weighed from 35 to 40 1bs.

The track on which the car was situated ran generally north and south. In doing such work, the men engaged therein worked in pairs, one at each side of the car. The plaintiff's place of work was on the west side of the car and Walls' place of work was on the east side of the car. They had started work at the north end of the car and prior to the incident which is the basis of this action, had floored eight to ten feet toward the center of the car. At this point, the two workmen, action in concert, undertook to 'jack' the floor boards which they had placed in the car to make the floor tight, closing all cracks or looseness, so that it could be bolted or nailed down to a 'diaphragm' or 'cover plate.' To accomplish the result desired, each of the workmen used a piece of the flooring timber as a 'pry' or 'jack' to press the flooring tightly together before it was permanently fastened. What is referred to in the evidence as a 'diaphragm' we take to be a part of the framework of the boxcar level with the floor. Walls got his pry piece into the space, wedged against the diaphragm, and noticing that the plaintiff was having difficulty in getting his pry into the space, left his pry standing upright or leaning toward the center of the car, without support except the friction or wedged tension to hold it, and moved over to plaintiff's side, got in front of plaintiff with a sledge hammer and attempted to drive plaintiff's pry piece into the hole, and hit the said of plaintiff's pry piece two licks. When Walls hit plaintiff's timber, the timber which Walls had left standing in the wedged space fell and struck plaintiff on the head, inflicting the injuries complained of. In this regard, Walls testified as follows: 'I pulled mine back and left the piece of pry flooring in an angle, and I stepped over there to help him drive his board in between this cover plate so he could pull his back, and this board I had put in here slid over and hit him.'

Before the jury retired, and in their presence, upon the conclusion of the court's oral charge, the defendant requested in writing the general affirmative charge for the defendant in proper form, which was refused, and now contends that 'the testimony showed either that no negligence was involved in the act of driving up plaintiff's end of the plank as it was done--or that if there was any negligence plaintiff was an equal actor with Walls in committing it,' and therefore the court erred in refusing said charge. In support of this contention, appellant argues, 'But, it may be said, if it was not negligence to drive in the plaintiff's pry bar with the sledge, it was negligence for Walls to leave his pry bar standing. This theory, if the should be advanced is unsound for two reasons. One reason is factual--the evidence for the plaintiff affirms that it was a customary and usual practice in the business of flooring cars, and nothing in the record indicates that it was inherently a dangerous one, unless the mere fact that in this instance someone was hurt can be said to supply that element. The other is a legal reason--it was not the proximate cause of the injury. The proximate cause of an injury is the primary moving cause, which, in the natural and probable sequence of events, without the intervention of any new or independent cause, produces the injury. Clearly enough, the wedging of Walls' end of the flooring timber with a pry-board, left there to hold it, was not the proximate cause of its fall and plaintiff's injury.'

This argument ignores or overlooks the very essence of the act of Walls according to his own testimony which we have quoted above. This statement shows that leaving the timber wedged without any support and going to assist plaintiff and hitting plaintiff's pry piece with a sledge hammer was a single continuing act, and in the light of the whole evidence, presents the crucial question in this case, that is, did Walls under the circumstances, exercise the care of a reasonable, prudent man, likewise situated? Reaves v. Maybank, 193 Ala. 614, 69 So. 137; McCray v. Sharpe, 188 Ala. 375, 66 So. 441; Barbour v. Shebor, 177 Ala. 304, 58 So. 276. If it was not, his act was negligence, as measured by the common law, and the question of whether or not said act was a negligent act, was for the jury, as was the question of proximate cause of plaintiff's injury.

'The logical rule in this connection, the rule of common sense and human experience as well (if, indeed, there can be a difference between a logical doctrine and one of common sense and experience, as some authorities appear to hold), is that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind. 1 Shear. & R. Neg. § 29.' Armstrong Adm'x. v. Montgomery Street Railway Co., 123 Ala. 233, 26 So. 349, 354; Goodwyn et al. v. Gibson, 235 Ala. 19, 177 So. 140; Louisville & N. R. R. Co. v. Maddox, 236 Ala. 594, 183 So. 849, 118 A.L.R. 1319; Montgomery City Lines, Inc. v. Jones, 246 Ala. 291, 20 So.2d 599; The G. R. Booth, 171 U.S. 450, 19 S.Ct. 9, 43 L.Ed. 234.

On the trial all the facts and circumstances bearing and attendant upon the infliction of the injury upon the plaintiff for which redress is sought in this case were fully developed and set forth in the evidence. The plaintiff himself testified affirmatively to receiving the injury, to the environment of the occurrence and to all its concomitant and pertinent antecedents, to its cause and to the manner of its causation. The evidence was sufficient to warrant the jury in proceeding to find a verdict in favor of the plaintiff. This meets the rule established by the federal decisions and decisions of this court as to the sufficiency of the evidence to warrant a submission to the jury in cases under the Federal Employers' Liability Act. Birmingham Belt R. Co. v. Bennett, 226 Ala. 185, 146 So. 265; Louisville & N. R. R. Co. v. Hall, 223 Ala. 338, 135 So. 466; Bowditch v. City of Boston, 101 U.S. 16, 25 L.Ed. 980.

Dr. Magruder, Jr., defendant's witness, testified that on the 13th of November, 1947, the plaintiff was brought to his office with a laceration of the scalp across the top of his head, that he gave him the usual treatment and then asked plaintiff if he felt like going back to work. Plaintiff agreed to light duty. On this examination plaintiff had no dizziness and his pupils showed no signs of brain injury. This examination revealed no signs of brain injury. On the 18th plaintiff returned to the said doctor's office, stating he was dizzy and felt like he was going to fall down. His blood pressure was 200 over 110. He was sent to the hospital where he remained until the 23rd. At the hospital X-rays were taken of his skull, which showed no evidence of fracture. He improved in the hospital and his blood pressure was 170 over 82. His pulse indicated there had not been severe injury to the brain. He was discharged on the 23rd of November and returned to the office on the 5th of December, complaining of dizziness. He was advised to...