Louisville & N.R. Co. v. Porter

• Decision Date: 14 October 1920
• Docket Number: 8 Div. 203
• Citation: 87 So. 288,205 Ala. 131
• Parties: LOUISVILLE & N.R. CO. v. PORTER.
• Court: Alabama Supreme Court

87 So. 288

205 Ala. 131

LOUISVILLE & N.R. CO. v. PORTER.

8 Div. 203

Supreme Court of Alabama

October 14, 1920

Rehearing Denied Dec. 18, 1920

Appeal from Circuit Court, Lauderdale County; C.P. Allmon, Judge.

Action by Irvine C. Porter, as administrator of the estate of L.O Gulley, deceased, against the Louisville & Nashville Railroad Company, for damages for the death of his intestate while employed as brakeman. Judgment for plaintiff, and defendant appeals. Affirmed.

Allegations that the defendant railroad negligently caused the house track on which a gravity switch was made to be obstructed by a standing car without any lights or other signals to warn the injured brakeman of the presence and position of the car was not subject to demurrer on the ground that the allegations of negligence were too general.

The facts sufficiently appear from the opinion of the court.

Count 8, as amended, is as follows:

Plaintiff, as such administrator, sues the defendant, the Louisville & Nashville Railroad Company, a corporation, to recover the sum of $20,000 as damages for the death of his intestate, L.O. Gulley, on, to wit, January 20, 1916. Plaintiff further avers that his said intestate was an unmarried man and is survived by his father, A.J. Gulley, for whose benefit recovery is sought in this case.

At the time of the injuries from which he died plaintiff's intestate was employed by the defendant in the capacity of a brakeman and was engaged in his duties as such on a freight train belonging to the defendant and which was carrying freight between the states of Tennessee and Alabama.

Plaintiff avers that his intestate was engaged in his duties as brakeman on a string of cars which were being placed on one of the defendant's tracks, known as the house track alongside its freight depot at Florence, Ala., when and where he was suddenly jerked, jarred, or thrown from off said cars down to and on the said track, and was so broken, crushed and mangled by one or more of said cars passing over him that he soon thereafter died. And plaintiff avers that the defendant negligently caused or allowed the said house track to be obstructed by a standing car without any lights, watch, or other signal to notify or warn his intestate of the presence and position of said car, and as a proximate consequence of such negligence the cars upon which plaintiff's intestate was riding collided with said car, and plaintiff's intestate was by said collision so as aforesaid thrown under said cars and killed; that in the death of plaintiff's intestate the said A.J. Gulley, for whose benefit this suit is brought suffered great pecuniary loss and damage, in this, to wit, that said deceased regularly contributed to his needs, aid and support by money contributions and otherwise, and that he had a reasonable expectancy for the continuance of said aid and support in the future and even to a greater extent as his needs demanded and his said son's ability increased, all of which he has lost and been deprived of by his said son's death.

Count 10:

Plaintiff, as such administrator, sues the defendant, the Louisville & Nashville Railroad Company, a corporation, to recover the sum of $20,000 as damages for injuries sustained by his said intestate, L.O. Gulley, on January 20, 1916. At the time of the injuries complained of plaintiff's intestate was employed by the defendant in the capacity of a brakeman and was engaged in his duties as such on a train belonging to the defendant and which was carrying freight between the states of Tennessee and Alabama and the defendant was a railway corporation engaged, among other things, as a common carrier of freight between the states of Tennessee and Alabama.

Plaintiff avers that his said intestate was engaged in his duties as brakeman on a string of cars which were being placed on one of defendant's tracks, known as a house track, alongside its freight depot at Florence, Ala., when and where he was suddenly jerked, jarred, or thrown from off said cars down to and on said track and was so broken, crushed, and mangled by one or more of said cars passing over him that for a long space of time, to wit, four hours, he suffered great and excruciating physical and mental pain. And plaintiff avers that the defendant negligently caused or allowed the said house track to be obstructed by a standing car without any lights, watch or other signal to notify or warn his intestate of the presence and position of said car, and as a proximate consequence of such negligence the cars upon which plaintiff's intestate was riding collided with said car, and plaintiff's intestate was by said collision so as aforesaid, thrown under said cars and killed.

The following charges were refused to defendant:

(36) The presence of the intestate on the top of a car in the cut of cars knowing that it would come in contact with a stationary car was a risk assumed by him incident to the service in which he was engaged.

(G) Even though you are reasonably satisfied from the evidence that defendant was guilty of the negligence alleged in the various counts of the complaint, yet I charge you that the plaintiff is not entitled to recover both damages for the mental and physical suffering of the intestate and damages which are pecuniary loss to intestate's father.

(29) If the testimony in this case leaves the matter uncertain and shows that any one of many things may have brought about the injury for some of which the defendant is liable and for some of which it is not, it is not for the jury to guess among these many causes and find that the negligence of the defendant was the real cause of the intestate's injury, there being no foundation in the testimony for that conclusion.

The court's oral charge designated as A is as follows:

Or, if the defendant, through its brakeman Hollis, was guilty of negligence, which negligence was the proximate cause of plaintiff's intestate's death, and you are reasonably satisfied from the evidence in this case of this, it is your duty to find for the plaintiff, or if McCandless, the brakeman of the defendant, misled plaintiff's intestate by his statement as to where the car was on the house track, and the defendant thereby was guilty of negligence, which negligence was the proximate cause of injury to plaintiff's intestate, and you are reasonably satisfied of this from the evidence in the case, it would be your duty to find for the plaintiff, but in either event it would be your duty to find for the defendant if you were reasonably satisfied from the evidence that plaintiff's intestate assumed the risk incident to his injury.

The following are assignments of error referred to:

(47) Overruling defendant's objection to questions to the witness Gulley as follows: "In what way did he assist you there at home with your own business or expenses?"

(48) Overruling motion to exclude the answer: "He bought stuff and brought it home and gave me a little money along."

(49) Overruling objection of the defendant to question to the same witness: "If you know any incident in which he specially aided you on account of your sickness, state it; that is, within a year or two before his death."

(50) Overruling motion to exclude the answer: "Well, he worked for me and aided me in the stuff he would buy to assist me."

(51) Overruling objection of the defendant to the question to the same witness: "Were you ever sick at any time, and if he rendered you special service, state to the jury what those services were."

(52) Overruling motion of defendant to exclude the answer: "I was sick and he came home and kept up my job until I was able to work."

(53) Overruling objection of the defendant to the question to the same witness: "What was the condition of your health about the time he died?"

(54) Overruling motion to exclude the answer: "My health wasn't very good about that time."

Eyster & Eyster, of Albany, and Andrews & Peach, of Sheffield, for appellant.

Callahan & Harris, of Decatur, for appellee.

THOMAS J.

The suit by a father for the death of a son was under the federal Employers' Liability Act (8 U.S.Comp.St.1916, §§ 8657-8665).

The former appeal (Porter v. L. & N.) is reported in 201 Ala. 469, 78 So. 375. The several questions for the jury were declared to be: (1) Whether plaintiff's deceased son (L.O. Gulley), a brakeman, falling under the wheels of cars making a gravity switch in the dark, fell off a car or was thrown off a car by a sudden impact with a stationary car; (2) whether Hollis, the brakeman riding on the leading car of the string (on which Gulley was also a brakeman) making a gravity switch in the dark, was negligent in allowing a collision with a stationary car, or was negligent in failing to retard the speed of the string of cars, thereby diminishing the force of the impact with the stationary car; (3) whether the head brakeman (McCandless) in charge of the gravity switch of a string of cars on which Gulley was riding in the dark was negligent in telling the operating brakeman that there was a stationary car near the platform, when in fact that car was much nearer the string making the gravity switch, whereby the collision occurred at a time and under circumstances that the operating brakemen riding thereon (Hollis and Gulley) were not expecting it, and therefore not prepared therefor. The evidence in the present record justifies each of these rulings and it would subserve no good purpose to repeat the same. There was no error in refusing defendant's motion for new trial based on insufficiency of the evidence to warrant submission to the jury and to support the verdict.

On former appeal a charge that sought to instruct the jury that plaintiff's intestate assumed all the ordinary risk incident to the manner in which his...