Mobile & O.R. Co. v. Williams

• Decision Date: 22 May 1930
• Docket Number: 1 Div. 577.
• Citation: 221 Ala. 402,129 So. 60
• Parties: MOBILE & O. R. CO. v. WILLIAMS.
• Court: Alabama Supreme Court

129 So. 60

221 Ala. 402

MOBILE & O. R. CO. v. WILLIAMS.

1 Div. 577.

Supreme Court of Alabama

May 22, 1930

Rehearing Denied June 19, 1930.

Appeal from Circuit Court, Mobile County; Alex T. Howard, Judge.

Action for damages for wrongful death by Myrtle Williams, as administratrix of the estate of Mose R. Williams, deceased against the Mobile & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Whether facts required due care of yardmaster and assistant to see that switch engine foreman was not in dangerous place before starting movement of railroad cars held for jury (Federal Employers' Liability Act [45 U.S.C.A. §§ 51-59] ).

The third count alleges that the defendant's assistant yardmaster, W. McKenna, negligently caused said engine and cars to start upon an interstate journey without exercising reasonable care to ascertain that none of defendant's employees, engaged in the operation, was in such position as to be run over by so starting said engine and cars in motion.

Count 5, in pertinent part is as follows:

"5. And, as a part of the fifth count, the plaintiff further avers that the death of the said Mose R. Williams was the proximate result of the negligence of the defendant's assistant yardmaster, W. McKenna, in causing the said engine and cars to start upon an interstate commerce movement, when he knew, or by the exercise of reasonable diligence would have known, that the air brakes had not been coupled, and when he knew, or by the exercise of reasonable diligence would have known, that some other employe of the defendant was likely to be under said cars at that time, for the purpose of coupling said air, upon the faith that said cars would not be started until said air brakes had been coupled, and that, if said train was so started, such other employe would probably be run over by one or more of said cars."

The eighth count is the same as count five, except the negligence alleged is attributed to defendant's switchman, L. P Holder.

The following charges were given for plaintiff:

1. "The Court charges the jury that if they find a verdict for the plaintiff their verdict should be for one lump sum and not for several different amounts for the separate benefit of the wife and children, respectively."

"24. The Court charges the jury that it is negligence on the part of any person in charge of the operation of a railroad train to start the same in motion upon its journey without first exercising due care to see and know that no person engaged in the movement is in such position as to be injured by the starting of the train, and it is not a sufficient excuse for doing so to show that the person who started the train was not actually aware that the employe who is injured was in fact in a dangerous position at the time that the train was started."

Exception to the oral charge, made the basis of the nineteenth assignment, is as follows:

"Then the measure of damages is to be arrived at in this way: You are to determine jut how much, from the evidence in the case, this man contributed in his lifetime. To illustrate, you are to take all the evidence and consider whether his contribution to his widow-not to his widow, to his wife and minor children during his lifetime, whether $1,200.00, $1,600.00 or $1,800.00, and after you have determined how much his contribution to his family was out of his earnings, and after determining from the evidence in the case, with the aid of the American Experience Tables of Mortality, what his duration of life was, you are to take those figures and then, with the aid of the Annuity Tables, you are to figure out what present sum of money paid over to the administratrix of his estate, always remembering that the time that you are to figure on is the time of the death of the decedent, what sum of money invested at the highest net rate of interest that could be obtained on a reasonable safe investment by a woman of the experience as shown by the evidence to have been the case with the plaintiff, and then figure out, with the aid of those tables, what sum of money would pay over to the widow and minor children the same amount of money that was contributed to them in the lifetime of the deceased workman and would be exhausted at the time that you find from the testimony the deceased Mose Williams' life expectancy would have been. In other words, the sum of money that you arrive at must be such a sum of money as would pay over to the widow and minor children the same amount of money that Mose Williams contributed to them in his lifetime and would be entirely exhausted at the end of the period when you find that Mose Williams would probably die, but the amount of money that is to be paid over to them is to be considered also in connection with the life expectancy of the widow."

The following charges were refused to defendant:

"21. The Court charges the jury that, in determining what the deceased may have earned subsequent to his death, had he lived, you should make reasonable deduction for diminished earning capacity due to infirmities of age, loss of time, sickness and other like causes which you might reasonably find should have been anticipated."

"38. The Court charges the jury that if you find for the plaintiff, but you are reasonably satisfied from the evidence that the deceased, Mose R. Williams, was himself guilty of negligence which proximately contributed to his injury and death, you should reduce the amount of what otherwise you find the plaintiff should recover by whatever sum you may find to be reasonable from the evidence considering such negligence.

Stevens, McCorvey, McLeod, Goode & Turner, of Mobile, for appellant.

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

FOSTER J.

This is the third appeal in this case. On the first, error was confessed. The second is reported in 219 Ala. 238, 121 So. 722. The facts shown in the report of the last appeal are in substance shown on this and additional evidence referred to in this opinion.

On this appeal, as on that, appellant's counsel press their contention that the proof does not justify an inference of negligence proximately causing the death of intestate, but only a conjecture to that effect. Of course if a conjecture is the only proper result of the evidence, it is not sufficient to justify an inference of negligence. This court fully appreciates that claim, and has clearly so stated it, and analyzed the distinction. Southern Ry. Co. v. Dickson, 211 Ala. 481, 486, 100 So. 665. The only difficulty in any such case is to determine whether the facts afford a reasonable inference or a mere conjecture.

The accident involved in this case occurred in full daylight. There were ten cars in the movement which resulted in the disaster. The blood stains and position of the mutilated body were such as to show that it occurred on the west rail, by a gondola, which was the third from the south end toward which direction the movement began. The evidence shows that deceased had been checking the cars in his book, and his book shows he had not checked the three gondolas and had inserted the seal numbers of only one of the box cars at the south end. Holder, the switchman at the south end, walked down on the west side to that end and around it and up on the east side inspecting the couplings and for obstructions, and to see that everything was right. He looked underneath the cars and between them. Appellant's counsel in brief call attention to figures from which they argue that "it can be determined with mathematical certainty, that there was very little, if any, ground space between the rails that was not within his view." McKenna, the yardmaster, had control of the cars and received from Holder the forward signal and relayed it. He was on the ground west of the cars, and says he "had a pretty good view of the whole cut of cars. It was, I suppose, eight or ten feet of that south end that I could not see. *** I could see under the cars, everything except what the wheels and journals kept me from seeing." He says he could see the legs of Holder on the other side of the cars as he walked along by them. So that between the two, the inference is they could see completely under and between the cars, and before and behind the couplings and journals, and that they did look, carefully, and did not see deceased at or near the cars or elsewhere at the time. McKenna boarded the engine as it moved off. The movement, apparently, as it started, caught deceased under the wheels of the third to the last car. We do not think it mere conjecture to say that when the cars started deceased was in a dangerous position; that he was engaged in his duty of checking the cars; that Holder and McKenna either did not look as they claim they did, or else they could or should have seen such dangerous position. Southern R. Co. v. Shelton, 136 Ala. 215, 34 So. 194; Shirley v. So. Ry. Co., 198 Ala. 102, 73 So. 430.

There was testimony by witnesses Potter and Kostmyer that in checking box cars the engine foreman (decedent here) would go down one side and up the other, but, if there should be some open cars, he crawled over the top or between them, generally over the top. It is not necessary to check gondolas on both sides, but it was necessary to check sealed box cars to examine and record their seals. The book showed the cars checked, except the gondolas, and except the seals on the box cars were not all recorded. The numbers of all cars are on both sides, so that to make a record in the book of the car number only one side of the car need be seen. But the seals are on both sides of the box cars. His duty required an inspection of both sides of such cars. In doing so, these witnesses said that a crossing is...