Mathews v. Alabama Great Southern R. Co.

• Decision Date: 17 May 1917
• Docket Number: 2 Div. 625
• Citation: 200 Ala. 251,76 So. 17
• Parties: MATHEWS v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

76 So. 17

200 Ala. 251

MATHEWS v. ALABAMA GREAT SOUTHERN R. CO.

2 Div. 625

Supreme Court of Alabama

May 17, 1917

Appeal from Law and Equity Court, Hale County; Charles E. Waller Judge.

Action by J.A. Mathews against the Alabama Great Southern Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Harwood McKinley, McQueen & Aldridge, of Tuscaloosa, and Thomas E Knight, of Greensboro, for appellant.

A.G. & E.D. Smith, of Birmingham, for appellee.

McCLELLAN J.

The appellant instituted this action against the appellee to recover damages for personal injuries suffered by him while in the service of the defendant. As finally amended, the complaint contained 15 counts. Those numbered from 11 to 15, inclusive, proceed upon the theory that the defendant's accountability was affected and governed by the provisions of the federal Employers' Liability Act, which, to quote in part our statement in L. & N.R.R. Co. v. Carter, 195 Ala. 382, 385, 386, 70 So. 655, 657, "is only applicable or available to the employés it prescribes and defines, viz. those in the employment of interstate carriers who at the time of the injury are engaged in work or service immediately related, directly contributory to interstate commerce." A first-hand consideration by the sitting members of the court of the very meager evidence bearing on the inquiry whether the plaintiff was injured while engaged in a service related to interstate commerce or to instrumentalities related thereto (Carter's Case, 195 Ala. 385, 386, 70 So. 655), makes it entirely clear that the plaintiff was not so related to interstate commerce as to subject his cause of action to the government of the federal act (Ex parte A.C.L.R.R. Co., 190 Ala. 132, 67 So. 256). This consideration, of course, eliminates those counts as possible bases for the imputation of error to the trial court in consequence of the general affirmative charge given for the defendant at its request. In short, the plaintiff was not, under the evidence, entitled to have the issues tendered by the averments of those counts (11 to 15, inclusive) submitted to the jury; he having failed to discharge in any degree the burden assumed by the plaintiff through material averments of those counts.

Of the other counts (1 to 10, inclusive), those numbered 1, 2, 3, 4, 5, and 6 are, in consequence of their averments to be referred to the pleader's purpose to state a cause under the first subdivision of the Alabama Employers' Liability Act (Code, § 3910), which imposes liability for injury to an employé proximately caused by a defect in the condition of the ways, works, etc., of the employer. Count 7 ascribes the plaintiff's injury to the negligence of a superintendent, under the second subdivision of the state act (Code, § 3910). Count 8 cannot be referred for its purpose to either the federal or state Employers' Liability Acts. The instrumentality described therein--a "coal chute"--is not among the instrumentalities enumerated in the fifth subdivision of the state Employers' Liability Act (Code, § 3910). Not being drawn to state a cause of action under either of the Employers' Liability Acts, it must be regarded as declaring upon a breach of a common-law duty, unaffected by the saving effects of the liability acts. If the negligence alleged therein had been shown to have been committed by a servant of the common master, it is probable that the dereliction charged was that of a fellow servant, the risk of injury from the negligence of whom the plaintiff assumed, according to the common law recognized in this state. See Woodward Iron Co. v. Cook, 124 Ala. 349, 354, 27 So. 455; 9 Michie's Dig.Ala.Rep. pp. 914, 915.

Counts 9 and 10 each ascribe plaintiff's injury to the negligence of the engineer and the conductor, respectively, and are referable to the fifth subdivision of the Alabama Employers' Liability Act (Code, § 3910). As stated, the court below gave the general affirmative charge for the defendant on the whole case. The evidence has been reviewed with all care; and, from this consideration, we think the conclusion is unescapable that this action of the court was entirely justified by the failure of the plaintiff to discharge, in any degree, the burden assumed by him to show, at least prima facie, by tendencies of or inferences from the evidence that his injury was attributable for proximate cause to some negligent act or omission for which the defendant is accountable.

Where the servant impleads the master for an injury suffered in the master's service, the plaintiff has the burden of proof to show not only the existence of the relation of master and servant, and that he was injured while in the performance of his service, but that some breach of duty, some negligence for which the master is responsible, proximately caused his injury. Proof of the fact of injury only, along with the fact that the relation of master and servant existed, will not suffice. L. & N.R.R. Co. v. Fitzgerald, 161 Ala. 397, 413, 414, 49 So. 860; A.G.S.R.R. Co. v. Brock, 161 Ala. 351, 357, 49 So. 453; Williams v. Anniston Elec. Co., 164 Ala. 84, 91, 51 So. 385; Am.Pipe Co. v. Landrum, 183 Ala. 132, 135, 136, 62 So. 757; Smoot v. Railway Co., 67 Ala. 13, 19; Clements v. Railroad Co., 127 Ala. 166, 174, 28 So. 643; L. & N.R.R. Co. v. Allen, 78 Ala. 494, 503, 504.

The express holding in these cases is that the servant, suing the master for an injury received in the master's service, cannot be aided by a presumption that negligence characterized the cause of his injury; and so, because there is no presumption of negligence in such cases. Since the rule expressed in the maxim res ipsa loquitur takes effect and operates, in a proper case, in consequence of "presumption," and not "inference," it is clear that the rule of the maxim cannot avail a servant plaintiff to affirmatively show, at least prima facie, negligence as the proximate cause of his injury, without departing from the long-established rule in this state announced and applied in the above cited, among other, decisions. There is a marked distinction between "presumption" and "inference." Morford v. Peck, 46 Conn. 380, 385; Cogdell v. Railroad Co., 132 N.C. 852, 854, 44 S.E. 618; In re Hopkins' Will, 35 Misc.Rep. 702, 72 N.Y.Supp. 417; Bannon v. Insurance Co., 115 Wis. 250, 259, 91 N.W. 66; New Mexico v. Lucero, 16 N.M. 652, 120 P. 304, 39 L.R.A.(N.S.) 58, 61; Miller-Brent Lumber Co. v. Douglas, 167 Ala. 286, 290, 52 So. 414; Bower v. Bower, 78 N.J. Law, 387, 393, 74 A. 522. Bouvier, at page 898, defines the maxim as being "a phrase often used in actions for injury by negligence where no proof of negligence is required beyond the accident itself, which is such as necessarily to involve negligence." When the basis, operation, and effect of the maxim is given due consideration the importance of noting the distinction between "presumption" and "inference" is emphasized; for to confuse them would lead to surprising results and to the overthrow of firmly established rules in this jurisdiction. This language of the Supreme Court of New Jersey in Bower v. Bower, supra, Justice Garrison writing, aptly, clearly indicates the distinction in mind:

"It is proper therefore to point out that the fundamental distinction between a presumption and an inference does not arise from any consideration as to the greater persuasive quality of the former, but solely from a rule of law by force of which in the case of a presumption a given evidential fact is invested with certain consequences touching the further production of proof. For the term 'presumption' denotes that a force is accorded by law to a given evidential fact whereby the duty of producing further testimony is affected. A presumption therefore is an inference to which definite legal consequences are attached. An inference, however persuasive, that does not affect the duty of producing testimony, is not a presumption."

In view of the fundamental distinction between a presumption (res ipsa loquitur) and an inference, and in view of the language employed in Chamberlain v. Sou. Ry. Co., 159 Ala. 171, 48 So. 703, it is a mistake to suppose that this court intended to apply the rule of the maxim, though expressly therein referred to, to a case where the servant impleads the master for the servant's injury while serving the master. The use there of the maxim as a vehicle of thought was intended to express the idea conveyed by the word "inference." Since inference is a deduction from facts proven, this expression in the opinion in the Chamberlain Case confirms the correctness of the interpretation just given it:

"We think the circumstances shown, in connection with the injury and accident, in the case at bar, were such as to authorize the jury to draw an inference of negligence on the part of the defendant in and about loading the car."

In So. Pipe Co. v. Caraway, 182 Ala. 671, 62 So. 527, it was expressly affirmed that proof of injury alone (which is the entire basis for the operation of the maxim) does not suffice to enable the servant plaintiff to discharge the burden of proof resting upon him to establish the negligence charged, and that negligence may be shown "without any direct proof thereof," meaning, undoubtedly, that the negligence imputed to the defendant might be shown by circumstances, might be inferred from the facts and circumstances disclosed by the evidence. Reference in Western Steel Co. v. Cunningham, 158 Ala. 369, 48 So. 109, discloses that the court declined to decide (see 158 Ala. 376, 377, 48 So. 109, of that report) the availability of the rule of the maxim in this class of cases.

It appears from the opinion (158 Ala. 377, 48 So. 109) that the court confused the effect of the maxim with the...