Louisville & N. R. Co. v. Jacobson

• Decision Date: 18 October 1928
• Docket Number: 6 Div. 989
• Citation: 218 Ala. 384,118 So. 565
• Parties: LOUISVILLE & N.R. CO. v. JACOBSON.
• Court: Alabama Supreme Court

118 So. 565

218 Ala. 384

LOUISVILLE & N.R. CO. v. JACOBSON.

6 Div. 989

Supreme Court of Alabama

October 18, 1928

Rehearing Denied Nov. 22, 1928

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages for personal injuries by Charles Jacobson against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

McClellan & Stone, of Birmingham, for appellant.

London Yancey & Brower and Frank Bainbridge, all of Birmingham, for appellee.

GARDNER J.

On the morning of March 20, 1924, Charles Jacobson, appellee here as engineer of the appellant railroad company on its Pan-American train, ran into an open switch in the Montgomery yards, colliding with a freight train then at rest on the switch line track, the force of the collision throwing his head against the cab and producing "a bump" on the back of his head. There was no abrasion of the skin, and the swelling gradually disappeared in the course of a week or ten days, and he continued on his run that day and with his work for practically a month thereafter, when he lost his position.

Jacobson insists that, while the blow on his head gave no outward indication that he had suffered any injury of any consequence, and while he did not know he was in fact in any manner seriously hurt, and made no complaint to that effect, yet that it developed the blow had in reality seriously affected both his eyesight and hearing so as to incapacitate him for further work of that character. Thereupon, on February 17, 1925, he instituted this suit against appellant railroad company under the Federal Employers' Liability Act (volume 44, pt. 1, U.S.Stat. at Large, p. 1442; 45 USCA §§ 51-59) for the recovery of $25,000 damages, and upon the trial recovered a judgment for the full amount sued for, from which judgment the defendant has prosecuted this appeal.

Appellant argues error in the refusal of the affirmative charge requested on its behalf upon two theories: First, upon the theory that plaintiff in his testimony rests for recovery upon a negligent signal of the yard "herder" to proceed, while the negligence charged in the complaint is that an unknown agent, servant, or employee "negligently caused or negligently allowed said switch to be and remain open." The argument is untenable. Plaintiff's testimony was to the effect that the signal given was an assurance that the switches were all right, and from the testimony the jury could infer that it was the duty of the "herder" to see that the switches in the yard were all closed before giving the signal to proceed with the train from the station. Birmingham Ry. Co. v. Baylor, 101 Ala. 488, 13 So. 793; L. & N.R.R. Co. v. Elliott, 166 Ala. 419, 52 So. 28. But, in addition, there was evidence that just previously a freight train numbered first seventeen had left this side track, and that it was the duty of the conductor of that train to see that upon leaving said track the switch was closed. Speaking to this phase of the evidence, witness Matthews, conductor of the train on which plaintiff was engineer, states:

"It is the duty of the man who pulled out of there to close that switch. If he went off and didn't close it he was negligent."

The switch was not locked, but was thrown, "latched down and left red." The jury could reasonably infer from the evidence that those in charge of train first seventeen negligently left the switch open. Authorities, supra. The mere fact, therefore, that plaintiff makes reference to the signal of the "herder" could in no manner affect the probative force of the testimony tending to show the duty of the "herder" as well also of the conductor of train first seventeen to see to it that this switch was closed.

It is not insisted there is here involved any question of assumption of risk, as it is well understood that, while the employee assumes the ordinary risks of the employment, he does not assume a risk created by the employer's negligence. Bierley v. Shelby Iron Co., 208 Ala. 25, 93 So. 829.

But the second theory for the affirmative charge rests upon the alleged contributory negligence on plaintiff's part. "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 employee 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.

It is recognized by the courts, however, that, if plaintiff's negligent act was the sole cause of the injury, there could be no recovery, for, as said in Ill. Cent. R.R. Co. v. Skaggs, 240 U.S. 66, 36 S.Ct. 249, 60 L.Ed. 528:

"It may be taken for granted that the statute does not contemplate a recovery by an employé for the consequences of action exclusively his own; that is, where his injury does not result in whole or in part from the negligence of any of the officers, agents or employés of the employing carrier or by reason of any defect or insufficiency, due to its negligence, in its property or equipment."

To like effect is Grand Trunk W. Ry. Co. v. Lindsay, 233 U.S. 42, 34 S.Ct. 581, 58 L.Ed. 838. This principle was recognized and given application by this court in So. Ry. Co. v. Peters, 194 Ala. 94, 69 So. 611, but it cannot be here applied under the evidence in this record.

Defendant charges plaintiff with negligence in the operation of the train through the yards in violation of the following rule of the company: "Trains must approach the junction of the H. & N. and S. & N. yard under control, expecting to find main track occupied"--insisting that he proceeded through the yards at too high a speed and without the train being under control. The engine of train second seventeen was standing with headlight burning (it was about 5 a.m. o'clock, dark and raining) on the sidetrack 426 feet from the switch. After leaving the main line and through the open switch, plaintiff ran his train these 426 feet into the engine of second seventeen, producing the collision, the subject-matter of this litigation.

It is the contention of the defendant that the above-cited rule was applicable, and that, had plaintiff operated the train under control, ample opportunity for stopping and preventing a collision would have been afforded.

But conceding, for the purpose of this argument only, that plaintiff was guilty of contributory negligence, under the undisputed proof, such negligence on his part could not have been the sole cause of the collision--this for the reason that negligence on defendant's part is indisputably shown by the switch negligently left open. "It is only when plaintiff's act is the sole cause--when defendant's act is no part of the causation--that defendant is free from liability under the Act." Grand Trunk R.R. Co. v. Lindsay, supra. And, as said by the court in Ill. Cent. R.R. Co. v. Skaggs, supra:

"If the injury was due to the neglect of a coemployé in the performance of his duty, that neglect must be attributed to the employé; and if the injured employé was himself guilty of negligence contributing to the injury the statute expressly provides that it 'shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé.' "

That defendant's negligent act was a "part of the causation" and in fact the foundation thereof, clearly appears from the undisputed proof, and any negligence on plaintiff's part contributing thereto is to be considered by way of diminution of the damages only, and not as a bar to a recovery.

The foregoing reasons, as applicable to the refusal of the affirmative charge, in connection with the authorities cited, serve also to justify the trial court in the refusal of those charges requested by defendant which constitute assignments of error 7 and 15.

Charges refused to defendant, constituting assignments of error 8, 9, 10, 11, 12, 13, and 14, lay stress before the jury of the rule of defendant, hereinabove set out, and plaintiff's duty in regard thereto. They omit any reference to the consequences growing out of such violation, whether in bar of the suit or by way of diminishing the damages. We are therefore of the opinion these charges had a misleading tendency sufficient to justify their refusal. In any event, however, an examination of charges given at defendant's request, as appear on pages 16 to 18, inclusive, of the record, disclose that the substance of these refused charges was well embraced in those given for defendant.

Assignments of error 3, 4, 5, and 6 relate to the refusal of charges requested by defendant, the effect of which would exclude plaintiff's recovery of any damages on account of any impairment of his sight or hearing.

Plaintiff testified to his age as 63 years. Subsequent to plaintiff's injury, his eyes were examined by two specialists--one Dr. Gunter of Albany, Ala. (now Decatur) who had known him for years and had prescribed glasses for him a number of times; the other, Dr. Constantine who has been engaged in his practice in Birmingham as an eye specialist since 1908. These specialists both agree that plaintiff was suffering with senile cataract in both eyes, and they did not think it possible...