Louisville & N.R. Co. v. Hall

• Decision Date: 30 April 1931
• Docket Number: 6 Div. 704.
• Citation: 223 Ala. 338,135 So. 466
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. HALL.

135 So. 466

223 Ala. 338

LOUISVILLE & N. R. CO. v. HALL.

6 Div. 704.

Supreme Court of Alabama

April 30, 1931

Rehearing Denied June 27, 1931.

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action under Federal Employers' Liability Act by Tom Hall against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

ANDERSON C.J., and BROWN, J., dissenting.

John S Stone, White E. Gibson, M. Leigh Harrison, and John S. Stone Jr., all of Birmingham, for appellant.

Chas. A. Calhoun and Coral W. Calhoun, both of Birmingham, for appellee.

BROWN J.

The plaintiff, while engaged in work, with others, as an employee of the defendant, a carrier engaged in interstate commerce, in attempting to break a large rock with dynamite, that obstructed the free passage of defendant's trains over the Warrior branch, received personal injuries which necessitated the amputation of one of his legs six inches above the knee. To recover damages for that injury, he brought this suit under the Federal Employers' Liability Act (45 USCA §§ 51-59), and recovered the judgment from which the defendant has appealed.

The complaint ascribed the injury to "the negligence of the officers, agents or employees of the defendant as such common carrier while acting in the line and scope of their employment as such, in this: that such officers, agents or employees so negligently conducted themselves in and about the direction, management or control of the blasting and breaking up of said rock as to injure plaintiff at said time and place as aforesaid."

The defendant pleaded the general issue and assumption of risk. The defendant's eighth plea alleges "that the plaintiff assisted in doing the blasting described in the complaint, and knew that the said fragments of rock would be thrown into the air when the explosion from said explosives occurred, and with knowledge of said fact, voluntarily failed to go to and remain at a place at which there was no danger of being struck by any of said fragments." (Italics supplied.)

No point is made in the brief of appellant as to the sufficiency of the complaint, though the rulings on the demurrers interposed thereto are assigned as error. Therefore, without affirming that the complaint was sufficient in its averment of negligence, as against the demurrer, we treat these assignments of error as waived. Keeton v. Northern Alabama R. R. Co. (Ala. Sup.) 132 So. 35.

It is well settled, however, that, in action under the Federal Employers' Liability Act, the rule as to the burden and quantum of proof necessary to require a submission of the issues to the jury is of the substance of the cause of action, and the rule recognized by the courts of the United States must be applied by the state courts, but on the question of procedure and practice, the state courts are governed by the laws of the state. Therefore, in this state averment showing that the party injured, in consequence of the negligence of the defendant or its employee, was an employee of an interstate carrier, and at the time of his injury was engaged in interstate commerce, must be supplemented by averments showing that the negligence complained of was a proximate cause of such injury. Illinois Central R. R. Co. v. Johnston, 205 Ala. 1, 87 So. 866; L. & N. Ry. Co. v. Stewart's Adm'x, 156 Ky. 550, 161 S.W. 557; Milwaukee & St. Paul R. R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; Chesapeake & Ohio Ry. Co. v. De Atley, 241 U.S. 310, 36 S.Ct. 564, 60 L.Ed. 1016.

The appellant's first contention is that error was committed by the court in refusing the affirmative charge requested by it in writing, for that (a) the plaintiff failed to prove the negligence alleged in the complaint; and (b) the evidence conclusively shows that plaintiff assumed the risk incident to the work in which he was engaged at the time of his injury.

Treating these questions in the order of their statement, and applying the rule recognized by the courts of the United States, that the burden is on the plaintiff to show negligence, and to adduce evidence which removes the question at issue from the field of mere speculation and conjecture, "and warrants the jury in proceeding to a verdict in favor of the plaintiff" (Bowditch v. City of Boston, 101 U.S. 16, 25 L.Ed. 980; Delaware, Lackawanna & Western R. Co. v. Converse, 139 U.S. 472, 11 S.Ct. 569, 35 L.Ed. 213; Illinois Central R. Co. v. Johnston, supra), the judgment here is that there was evidence going to show negligence which justified the submission of the case to the jury.

To state the substance of the evidence and the principles of law applicable, the plaintiff was a section hand and his regular employment was on the main line, as a member of the crew under section foreman Long of the Monmouth section, and on the morning of the day of his injury went to his regular work. Around 10 o'clock of the day the division supervisor, Mr. Busby, called Long and his crew, and another crew under the foremanship of Burke, to go to a point near Majestic on the Warrior branch and clear the track of a slide resulting from heavy rainfall. The slide consisted of earth and rock that had slipped down from a high embankment into the cut; one large rock, approximately twelve feet in height, ten feet wide, and eight feet thick, resting so near the tracks as to interfere with the movement of trains.

The two crews and their foremen, working under the immediate, personal supervision of Mr. Busby, cleared away the dirt from the top of the stone which lay in a slanting position, and, according to one phase of the evidence, after digging out a hole or "duck's nest," placed therein powder, and from twenty to twenty-five sticks of dynamite, and on top of these explosives placed from one and a half to two tons of small rock of different sizes and shapes. The end of a fuse from four and one half to five feet in length, with a percussion cap thereon, was embedded in one of the sticks of dynamite. The plaintiff and another section hand, as directed by Busby, placed the charge and attached the fuse. Section Foreman Burke cut the fuse, then, as directed, plaintiff lighted the fuse, and he and Perryman climbed down off the rock, and, with the others, some of whom, including Busby, had already gone, sought such cover as in the emergency each could discover for himself. Busby, it seems, took the motorcar on which the dynamite in the case was placed, and, when the explosion occurred, was one-half mile from the slide. The plaintiff ran between six and seven hundred feet down the track, and sought cover in a depression in the embankment of the cut that sheltered him from the direct course of the explosives. Just as he lay down in this depression the explosion took place, throwing small rock placed on top of the charge up, and these fell in every direction covering an area of seven or eight hundred feet, one of which, weighing six or seven pounds, fell upon plaintiff's leg, crushing the bone and lacerating the ligaments and muscles thereof in such sort as to necessitate the amputation of his leg.

The plaintiff's evidence further tended to show that, while he had worked in coal mines and used explosives in blasting, his experience was limited to the practice of drilling holes in which the explosives were placed, and he had had no experience in making "dobie shots" such as was made on the occasion of his injury. The plaintiff's evidence further tended to show that no warning was given as to the danger incident to and as a consequence of such shot, where quantities of small rock were piled on top of the explosives, and no instructions were given the men as to where they should go for cover. The evidence further showed that a new fuse, such as was used on this occasion, would burn about one foot per minute.

The defendant's section foreman, A. P. Long, was offered as a witness by the plaintiff, and testified: "I know what a dobie shot is. That is what I thought we were making, a kind of dobie shot, what I had always heard them called. A dobie shot is putting dynamite down and laying damp mud or dirt on top of it. That is what I had always known it to be. I don't know that I have ever known of rock to be put on top of rock before this. I always just used mud myself; I never put rock. This was quite a large rock. I figure it weighed about twenty-five or thirty tons, it was taller than the head. Towards Majestic, about the same distance that Mr. Hall and the other boy went, going towards Morris, there was shelving rock on the hill. We all got under it after Mr. Hall got hurt. We didn't get under it before, not at the time the first blast was made."

The plaintiff, in addition to this testimony, adduced two or more witnesses "who had gained by experience and acquaintance with the subject" of laying and firing dobie shots in breaking large rocks, "not common to others," who gave their opinion that the proper course to pursue was not to place on top of the dynamite large quantities of stone, but to place thereon mud, as the term "dobie" indicates, and one or more of these witnesses testified that "dobying" was the proper method of breaking rock in thickness from twenty-four inches down, and, if more than twenty-four inches in thickness, the proper method was to drill the rock and place the dynamite in the drill hole. Staples v. Steed, 167 Ala. 241, 52 So. 646, Ann. Cas. 1912A, 480.

Mr Busby testified, in part, "I had entire charge and management and control of the men on this occasion. I suggested the method of getting up there and clearing the stuff off the top of the rock and shooting it in that way. I didn't particularly suggest it. I just told them to do it. I never had any practical experience in shooting...