Mobile & O.R. Co. v. Hedgecoth

• Decision Date: 28 October 1926
• Docket Number: 6 Div. 643
• Citation: 215 Ala. 291,110 So. 44
• Parties: MOBILE & O.R. CO. v. HEDGECOTH.
• Court: Alabama Supreme Court

110 So. 44

215 Ala. 291

MOBILE & O.R. CO. v. HEDGECOTH.

6 Div. 643

Supreme Court of Alabama

October 28, 1926

Rehearing Denied Nov. 26, 1926

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action by Daisy Hedgecoth, as administratrix of the estate of Carl A. Hedgecoth, deceased, against the Mobile & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Foster Rice & Foster, of Tuscaloosa, for appellant.

London Yancey & Brower, George Frey, and Frank Bainbridge, all of Birmingham, for appellee.

GARDNER J.

Action under the federal Employers' Liability Act (U.S.Comp.St §§ 8657-8665) to recover damages for the death of Carl A. Hedgecoth, who met his death about 10:30 o'clock on the night of March 31, 1925, while in the employ of appellant as field switchman in its yards at Tuscaloosa, Ala. No question is presented as to due proof of dependency, earnings of deceased, or amount of the recovery, and it is conceded that the deceased employé was engaged in work of such interstate character as to bring the case within the influence of the federal act.

The refusal of the affirmative charge requested by appellant is the only question here presented for consideration.

There was no eyewitness to the accident, and appellant's insistence for the affirmative charge rests upon the theory that actionable negligence has not been made to appear, but that the cause of the death of Hedgecoth is a matter of mere conjecture and speculation, insufficient upon which to base a jury's verdict. South. Sewer Pipe Co. v. Caraway, 182 Ala. 669, 62 So. 527; St. L. & S.F.R.R. Co. v. Dorman, 205 Ala. 609, 89 So. 70; C., M. & St. P. Ry. Co. v. Coogan, Adm'x, 46 S.Ct. 564, 71 L.Ed. ---.

All the authorities agree, of course, that the cause of the injury and the question of actionable negligence may be established by circumstantial evidence, but, as said by the United States Supreme Court in the Coogan Case, supra:

"Whenever circumstantial evidence is relied on to prove a fact, the circumstances must be proved and not themselves presumed."

The sole matter, therefore, here for determination relates to the sufficiency of the circumstantial evidence to establish the negligence charged.

At the time Hedgecoth was killed, the switching crew was engaged in switching on to the scale track and weighing a train of ten cars. The scale track was level, but declined from this level place in both directions to the north and to the south. The end of the decline to the north of the scale house was about 300 feet from the scales. The decline of the track was such as to permit the cars rolling to the "bottom of the hill," as witnesses called it, after being "kicked" off the scales. It was the duty of Hedgecoth to ride on the first car weighed, called the "regulating car," and to stop it with a handbrake after it had rolled about a car length from the scales, which was done. The next car was then moved by the engine on to the scales, where it was weighed and "kicked off," rolling down the incline until it came in contact with the "regulating car," on which was the deceased. The brakes on the "regulating car" were then released, and both cars thus permitted to roll down the track about another car length, and this process continued until all but the last two or three cars attached to the engine had been weighed.

We note here the insistence of counsel for appellant to the effect that the evidence is insufficient to show at what point on the track the "regulating car" and the second car came in contact, but we think the following excerpts from the testimony, noted in brief of appellee's counsel, sustain the conclusion of fact as above outlined:

"We spotted the first car, that is, the car furtherest from the engine, on the scales, and weighed that one, and I told Mr. Hedgecoth to get on that car and ride it down the track. I cut that car off, and he rode it down, about 20 or 30 feet. We weighed the next car, cut it off, and dropped it down on top of that one. Hedgecoth let the brake of the car he was riding off, and let them drop down a little bit further, 20 or 30 feet at a time, and kept up that way until we got to the eighth car. So far as could be seen by the foreman of the crew, Mr. Hedgecoth was performing his duties, which were to let his car roll down about a car length and then stop, and when the next car reached his car to drop his [car] another car length, and continue to do so as long as there were cars to be put on the track."

As the cars rolled down the track and came in contact they coupled automatically, except the "regulating car" and the second car, which, for some reason not necessary here to inquire, did not couple. The last three cars to be weighed were left connected and coupled to the engine. Neilson, the foreman of the crew, states that upon these three cars being weighed he called to deceased that "we were ready to go," and, receiving no answer, he walked down the track to see what was the matter. He found the body of deceased under the first pair of tracks of the second car that was "kicked off," about 4 or 5 feet from the north end of the car, one wheel having passed over his body. Neilson further testified that he last saw deceased when they were weighing next to the last car. His lantern was lit on top of the "regulating car," which was his place of duty. The witness in...