Mobile & O.R. Co. v. Williams

• Decision Date: 23 March 1933
• Docket Number: 1 Div. 721.
• Citation: Mobile & O.R. Co. v. Williams, 147 So. 819, 226 Ala. 541 (Ala. 1933)
• Parties: MOBILE & O. R. CO. v. WILLIAMS.
• Court: Alabama Supreme Court

147 So. 819

226 Ala. 541

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

1 Div. 721.

Supreme Court of Alabama

March 23, 1933

Rehearing Granted April 27, 1933.

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action under Federal Employers' Liability Act 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.

Affirmed on rehearing.

In death action, there is no reversible error in giving charge for defendant, if death was result of mere accident.

Assignments of error 17 and 19 are as follows:

"17. The trial court erred in giving to the jury the following instruction as a part of its oral charge to the jury:

"'If the dependent children of the deceased have further suffered the loss of care, attention, instruction, training, advice and guidance of the father which they would have received from him except for his having been killed upon the occasion in question, and if this imposed upon them a pecuniary loss, then the damages awarded should include reasonable compensation for this loss, which must be determined by the Jury."'

"19. The trial court erred in giving to the jury the following instruction as a part of its oral charge to the jury:

"'The Court further charges the jury that it is negligence on the part of those in charge of the operation of a railroad train to start it in motion and upon its journey when they know, or have reasonable ground to apprehend that some of the employees of the railroad in and about the operation of such train are likely to be in a position of danger, and in which they will be injured by the starting of the train, without first exercising reasonable care to see that such other employee is not in a position of danger."'

The following charges, made the basis of assignments 20, 21, 22, and 23, were given at plaintiff's request:

"B.B. The court charges the jury that while the Court has given you charge Number 26 for the defendant, the Court now explains to you that that charge was not intended to refer to the highest rate of interest that could be obtained upon some particular investment by a person who possessed special skill in the making of such investments, but referred only to the highest rate of interest that the ordinary person could realize upon money without the use of such unusual and extraordinary skill or at the expense of extraordinary effort which would necessitate their devoting considerable of their time and labor in making the investment."

"C. The Court charges the jury that it is negligence on the part of any person, in charge of the operation and movement of a railroad train, to start that train upon its journey at a time when he knows, or has reasonable ground to apprehend, that some one of the trainmen engaged in preparing the train for movement is in a position in which he is likely to be killed by the movement of the train, either from the customary manner of performing his duties or because his duties required him to assume such position."

"D. The Court charges the jury that it is the duty of every person in charge of the operation of a railroad train, who knows that some other person engaged in making up the train is likely to be in a position where he will be killed if the train starts upon its journey, to make a reasonable effort to ascertain whether or not any of the trainmen are in a position of danger, where they will be injured by the starting of the train, before starting the train in motion."

"F. The Court charges the jury that it is negligence on the part of any person, having the control and operation of a railroad train, which is about to start upon an interstate commerce journey, to start that train in motion at a time when he knows that other employees of the defendant, engaged in the preparation of said train, are likely to be under the train, in the performance of their duty, and in such a position as to be injured by so starting the train in motion."

The following charges were refused to defendant:

"A. The Court charges the jury that upon the evidence in this case you cannot award the plaintiff any damages for the loss by the children of the deceased, Mose R. Williams, of his care, attention, advice, guidance, love or affection."

"6. The Court charges the jury that, if you are reasonably satisfied from the evidence that the deceased, Mose R. Williams, sustained his injury and death as the proximate result of a mere accident, it is your duty to return a verdict in favor of the defendant."

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

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

FOSTER Justice.

On the three former appeals in this case (219 Ala. 238, 121 So. 722, 221 Ala. 402, 129 So. 60, 224 Ala. 125, 139 So. 337), we held in substance that, because it was the duty of deceased to check the numbers and seals of each of the seven box cars, and numbers on the three coal cars in the "cut" in question, and that to do so he must examine the seals on both sides of the box cars and record the result of such examination, and because the jury could reasonably find that he had not completed the work, and that under the circumstances of this case it was not unusual, but rather customary, to cross from one side to the other of the "cut" to examine both sides, and that in doing so he frequently passed between the cars, and on this occasion he had not signified the fact of his completion of the work, and that he was probably in a position of danger, though he may not have been seen when the movement began, there may be found to have occurred a breach of duty owing to him by not using due care to discover his position before beginning the movement when he was in a position, which such movement made dangerous to him while still in the performance of his duties under his employment in interstate commerce, though he was himself negligent in such performance. We do not think it necessary to again discuss that question. We remain convinced that it is justified by the evidence in this case.

In this record, as in that of all the former appeals, appellee has injected in the case a matter which we have held in them all has no place, as they there appeared; that is, the question of connecting the air brakes. On the appeal as noted in 219 Ala. 238, at page 246, 121 So. 722, 728, we stated that in "no aspect of the evidence could the condition of the brakes have effected or proximately caused the accident." See Lyon v. Charleston & W. C. Ry. Co. (S. C.) 56 S.E. 18.

On the appeal reported in 221 Ala. 402, 129 So. 60, we first dealt with the sufficiency of counts 5 and 8, alleging the failure to couple the air brakes, with knowledge that one other than plaintiff's intestate was likely to be under the cars for that purpose, and that decedent acted upon the faith of the performance of a duty not owing to him, but to such other employees. We held that the breach of a duty to another could not be the predicate of an action by plaintiff for the death of her intestate to whom no such duty was alleged. On that same appeal we also held that the court should not have charged the jury that a failure to couple the air brakes was negligence as a matter of law, because such negligence could not have been the proximate cause of the accident.

On the appeal reported in 224 Ala. 125, 139 So. 337, we held that, in view of the uncontradicted evidence that it was not usual or customary to couple the air brakes in such a movement of cars, it was error to give charge G predicated upon a premature movement without making such air connection.

On this appeal defendant offered to prove that there was no such custom or usage. The court sustained plaintiff's objection (transcript, page 31), and there was no other such evidence in this record, though there was evidence that decedent did many times make such movement without coupling the air. As a part of the answers of defendant to interrogatories, put in evidence by plaintiff, she introduced rule 1228 of the transportation department of defendant under a heading in the book of rules of "Conductors in Freight Service." The rule is as follows: "Before starting they must be assured by the car inspector in charge that the air brakes have been tested and are working throughout the train also that the train has been otherwise inspected and is ready for movement."

Defendant moved the court to exclude the rule No. 1228, which the bill of exceptions states was introduced by defendant. We do not know whether this last statement is an error or not, for we do not find where defendant introduced that rule. But it appears in answer to interrogatories to defendant, and, when those answers were introduced in evidence by plaintiff no objection was made to this rule, and none had been made by defendant in answering the interrogatories.

There appears, therefore, no reversible error in denying the motion to exclude it. It should have been made not later than the occasion of the offer to introduce the evidence.

Sparks v. Reeves, 165 Ala. 352, 51 So. 574; Cotton States Life Ins. Co. v. Crozier, 218 Ala. 173, 118 So. 327; Wallace v. Elliott, 220 Ala. 125, 124 So. 286; Forehand v. White Sewing Machine Co., 195 Ala. 208, 70 So. 147; Mississippi Lumber Co. v. Smith, 152 Ala. 537, 44 So. 475.

This brings into the case again the question of the coupling of the air brakes, and, under our rulings, that question is not admissible in any aspect of this case, when it is shown without dispute that the custom was to disregard it; that its only use in this case is to show negligence in prematurely starting the movement on the assumption by decedent that such would not be done until it is complete in that...