Louisville & N.R. Co. v. Blankenship, 6 Div. 381

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 199 Ala. 521,74 So. 960
• Decision Date: 12 April 1917
• Docket Number: 6 Div. 381
• Parties: LOUISVILLE & N.R. CO. v. BLANKENSHIP.

74 So. 960

199 Ala. 521

LOUISVILLE & N.R. CO.
v.
BLANKENSHIP.

6 Div. 381

Supreme Court of Alabama

April 12, 1917

Appeal from Circuit Court, Cullman County; R.C. Brickell, Judge.

Action by Homer Blankenship, by his next friend, against the Louisville & Nashville Railroad Company, under the federal Employers' Liability Act, for damages for injuries while engaged in its employment. Judgment for plaintiff, and defendant appeals. Affirmed.

The facts sufficiently appear. The following charges were refused to defendant:

(A) Unless you believe from the evidence that both defendant and plaintiff were engaged in interstate commerce at the time the injury occurred, then your verdict should be for defendant

(B) Both plaintiff and defendant must be engaged at the time of the injury in interstate commerce to bring this cause within the influence of the United States statutes under which this suit is brought

(C) I charge you, gentlemen of the jury, as a matter of law, under the evidence in this case, that plaintiff is not entitled to recover because of the failure of the evidence to show that at the time the injury happened both plaintiff and defendant were engaged in interstate commerce.

(D) I charge you, gentlemen, that the character of the work in which plaintiff and defendant were engaged at the time of the occurrence of the injury does not come under the influence of the Employers' Liability Act of Congress.

(E) Under the evidence in this case, if you believe the same, I charge you that plaintiff's big toe was not amputated by reason of the injury as is charged in the complaint in this case.

(F) If you believe the evidence in this case, you must find a verdict in favor of defendant.

(6) Affirmative charge as to the sixth count.

(7) Same as to the seventh count.

(8) If you believe from the evidence that the injury to plaintiff was due to his failure to exercise proper caution and diligence in and about taking down the hose to get the water, and if you believe from the evidence that the boom of the ditcher engine struck a telegraph pole in this case, and that both of these causes combined, and caused his injury, then you cannot find for plaintiff as to counts 6 and 7.

Geo. H. Parker, of Cullman, and Eyster & Eyster, of Albany, for appellant.

A.A. Griffith, of Cullman, and Callahan & Harris, of Decatur, for appellee.

THOMAS, J.

The complaint originally contained seven counts. Plaintiff withdrew all but counts Nos. 6 and 7, which stated a cause of action under the federal Employers' Liability Act. To each the defendant pleaded the general issue.

The gist of these counts is that the defendant was engaged in interstate commerce, and at the time of plaintiff's injury was improving its main track, rendering it more safe or permanent by ditching and excavating along it, in Blount county, Ala.; that this work was done by means of a "ditching outfit," which was mounted on a set of tracks on a flat car, and on which tracks a diminutive steam engine was propelled back and forth; that one Durbin was in charge of this ditching engine; that plaintiff, while acting within the line and scope of his duties as an employé of defendant, was injured by reason of the negligence of said Durbin--count 6 alleging the negligent act to have [74 So. 962] been the causing of the crane which was attached to the "ditcher" to swing around against a telegraph pole, thereby throwing plaintiff upon the track on said flat car, where he was injured; and count 7 alleging that Durbin negligently conducted himself in and about the management or operation of the ditching engine, thereby causing plaintiff to be thrown down to and upon the track of said flat car, and his foot to be mashed and bruised by said ditching engine; that is, the distinguishing features of these counts are that count 6 attributes plaintiff's injury to the negligence of Durbin in causing the crane to come in contact with a telegraph pole, and count 7 attributes said injury to the negligence of Durbin in the control or operation of the ditching engine, in that thereby plaintiff was thrown on the track and injured by the ditching engine as alleged.

Plaintiff's evidence tended to show that he was injured while discharging the duties of a fireman, and that the general character of the work being prosecuted by defendant and its said agents (including plaintiff) at that point on the main line was cleaning out its ditches, taking out a "slide" toward and along the main line that had obstructed the ditches and the flow of water therein.

It was competent for the plaintiff to testify that there was no other way for the surface water to be drained off from the track of the main line than through the ditch that was being opened, when the injury occurred, as tending to show an act necessary in improving or rendering more safe the main line of defendant, along which its business as a common carrier of passengers and freight between the states was conducted, and in which work the defendant and the plaintiff were at the time engaged.

Plaintiff's account of his duties was thus detailed by him:

"It was the main line of the track where we were working. The passenger and freight trains run over it, including through passenger trains and through freight trains. *** I was injured about 11 o'clock, between 10 and 11, somewhere along there, in the daytime. My duty on the ditcher was to fire to dig two carloads of dirt, and then the other fellow, the pitman, he fired to dig two carloads.

"I was firing just before I was injured. Just before I was injured Durbin gave the signal, two blows for water, and that meant to get ready to take water into the tank of the ditcher from the tank connected with the locomotive engine. When the signal was given it was my duty to get ready to take water. Mr. Durbin instructed me in that duty. To get water I had to climb up and put a hose in the tank of the locomotive. The locomotive was on the track opposite to the ditcher. To take water we had to get the car over where the locomotive engine could get to the side of the ditcher.

"The ditcher was in place, and they went down to pull the locomotive in place, but it had not got in place, but was coming in place. I climbed up on the corner of the flat car of the ditcher. It was necessary to get up there. When I got there I stood just on the corner of the ditcher. The ends stuck out about 2 1/2 inches, and I was standing on that. The car I was on was standing still. The ditcher at that time was moving around. When I got on the place where I was standing the crane on the ditcher was swinging around and hit a telephone pole, and jarred me down. ***

"When the crane struck the telegraph pole it knocked me down on the track, and then the ditcher engine run back over me and mashed my toes. The track I was knocked down on was the ditcher track on top of the car. I fell right straight down. The ditcher engine was not running backward and forward on the track before I fell. After I fell it run back on the car. I cannot say how long I was on the track before I was struck; it was quick done. It was done by the time I got down there, just about."

On cross-examination defendant asked, "Blowing the whistle would not disclose your presence if he could not see you would it?" and was answered, "Yes, sir; he blew the whistle for water and we knew to take down the hose and get ready to take water."

A party will not be permitted to experiment, in interrogating a witness, by calling out a certain answer and then (the answer proving unfavorable) having it excluded on motion. No error was committed in overruling defendant's motion to exclude this answer. E.T., V. & G.R. Co. v. Turvaville, 97 Ala. 122, 12 So. 63; Amer. Oak Ex. Co. v. Ryan, 112 Ala. 336, 20 So. 644; Farrow v. N.C. & St. L. Ry., 109 Ala. 448, 20 So. 303; Hunnicutt v. Higginbotham, 138 Ala. 472, 35 So. 469, 100 Am.St.Rep. 45. A part of the answer was clearly responsive, and it may be that the whole answer was responsive to defendant's question. It was not the duty of the court, on a general motion to exclude the whole answer, to separate the responsive and competent testimony from that which was not responsive and was illegal. Ray v. State, 126 Ala. 9, 28 So. 634; Henry v. Hall, 106 Ala. 84, 17 So. 187, 54 Am.St.Rep. 22; Ala. Mid. R. Co. v. Darby, 119 Ala. 531, 24 So. 713; Davis v. State, 131 Ala. 10, 31 So. 569; Rarden v. Cunningham, 136 Ala. 263, 34 So. 26; Weaver v. State, 139 Ala. 130, 36 So. 717.

Defendant...