Louisville & N.R. Co. v. Pettis

• Decision Date: 21 April 1921
• Docket Number: 1 Div. 166
• Citation: 89 So. 201,206 Ala. 96
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. PETTIS.

89 So. 201

206 Ala. 96

LOUISVILLE & N.R. CO. v. PETTIS.

1 Div. 166

Supreme Court of Alabama

April 21, 1921

Rehearing Denied May 19, 1921

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action by Grover C. Pettis against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Smiths Young, Leigh & Johnson, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

McCLELLAN J.

The plaintiff (appellee) was severely injured while assisting another employee of the defendant (appellant) in opening "dump doors" in the bottom of a freight car belonging to defendant, commonly used to transport coal slag, etc., these doors having become "stuck." The defendant is a common carrier, engaged in intra- and interstate commerce. Counts 1, 2, and 3, declaring on causes of action under the federal Employers' Liability Act (U.S.Comp.St. §§ 8657-8665), were not subject to the demurrers addressed thereto. Southern Rwy. v. Peters, 194 Ala. 94, 97, 69 So. 611; Southern Rwy. v. Fisher, 199 Ala. 377, 379, 380, 74 So. 580. Decisions of this court, defining the essentials of sufficient pleading under the Alabama Employers' Liability Act (Code, § 3910 et seq.), are not controlling, if serviceable at all, in determining the sufficiency of counts drawn to state causes of action under the federal Employers' Liability Act.

There were other counts declaring on causes of action referable to common-law duties of a master to the servant, as well as to the Alabama Employers' Liability Act.

We find no assignment of error presenting for review the action of the trial court in overruling demurrer to count 26. Where a count states a cause of action, but is conceived to be defective in its allegations for the purpose, the sufficiency vel non of the count cannot be raised by requests for instructions to the jury.

The court submitted to the jury the determination of the issue whether plaintiff was, at the time of his injury, engaged in an interstate service within the purview of the federal Employérs' Liability Act. Under counts so declaring the burden of proof was upon the plaintiff to show, prima facie at least, this interstate relation of his service at the time he was injured. Ex parte A.C.L. Ry. Co., 190 Ala. 132, 67 So. 256; L. & N.R.R. Co. v. Carter, 195 Ala. 382, 384, 70 So. 655, Ann.Cas.1917E, 292. Whether plaintiff was so engaged in a service related to interstate commerce, within the federal Employers' Liability Act, depended entirely, under the evidence, upon the further inquiry: Was this freight car on which he was at work an instrumentality of such commerce at the time he was injured? And, since this car, returning from New Orleans, La., to Birmingham, Ala., was actually in the current of interstate movement, in an interstate train, when it was "cut out" of that train at Mobile, Ala., to be given at the Mobile shops needed repairs, the still further inquiry, controlling the solution of the issue stated, was whether this car had been withdrawn from its interstate movement at the time plaintiff was injured.

Testimony bearing upon this final inquiry was offered by both sides. The removal of the car from the course of its interstate movement took place at Mobile in the night-time, March 2-3, 1917, before plaintiff's injury on March 3, 1817. The pith of the issue was the relation of the car to interstate commerce at the time of plaintiff's injury, though its subsequent retention at Mobile, its later direction or movement to Birmingham, were circumstances relevant to the issue stated. The period elapsing between the arrival of the car at Mobile (the night of March 2-3, 1917), and the injury of the plaintiff the next day (March 3, 1917) was not sufficiently protracted to justify a conclusion of law that the car had been so withdrawn from its interstate movement as to denude it of the interstate character the car had when actually in the course of progress from New Orleans, La., to its assigned destination at Birmingham, Ala. If the repair of the car had been undertaken while in immediate transit, without removing it to the shop yards, there could have been no sound contention but that the car continued to be an instrumentality in interstate commerce. At what stage or time this car lost, if at all, its relation to interstate commerce, an actual unit of such commerce, when it came into Mobile, Ala., lay in inference and deduction, and the jury's judgment was necessary to the solution of the inquiry under the whole evidence bearing on the issue.

The facts that the car had completed its interstate haul of coal to Louisiana from Alabama, and was returning empty, via Mobile, to the Alabama coal fields for assignment to either intra- or interstate commerce upon or after its arrival at Birmingham, Ala., did not conclude the inquiry. An empty car, en route over state lines, may be an instrumentality in interstate commerce. It is the relation of a car to interstate commerce, at the time in question, that characterizes it as an instrumentality in such commerce. The presence or absence of an interstate burden on the car will not always necessarily conclude the inquiry, though the evidential value of this circumstance is not, of course, to be ignored or its probative force minimized in proper cases. Rolling stock is essential to the conduct of interstate commerce, and its relation thereto depends upon the use to which it is assigned. 12 C.J. p. 38. Rolling stock, though without burden, in the course of uninterrupted movement across state lines, for future assignment or use in either intra- or interstate commerce, is at the time of such movement so related to interstate commerce as to be an instrumentality in interstate commerce. When it arrives at the destination of such interstate movement, its character as an instrumentality in interstate commerce may, according to circumstances, cease, or its assignment to an interstate service may continue or renew its character as an instrumentality in interstate commerce; but during the course of such interstate movement it is an instrumentality in interstate commerce until its progress to destination has been so interrupted or deflected as to effect a withdrawal from such movement, and hence denude the rolling stock of the character with which its interstate movement invested it.

The question is distinctly federal, and is to be determined by authoritative or persuasive pronouncements by federal appellate tribunals. In Erie R. Co. v. Collins, 253 U.S. 77, 40 Sup.Ct. 450, 452, 64 L.Ed. 790, the Supreme Court has restated its pertinent decisions. In Minneapolis R.R Co. v. Winters, 242 U.S. 353, 356, 37 Sup.Ct. 170, 61 L.Ed. 358, Ann.Cas.1918B, 54, the engine there in question was at rest in a round-house at a division point in Iowa, having completed its last interstate assignment and not having been assigned to another interstate service. See facts recited in the same case as reported in 126 Minn. 260, 263, 148 N.W....