Nashville, C. & St. L. Ry. v. Wilson

• Decision Date: 03 November 1960
• Docket Number: 8 Div. 13
• Citation: 126 So.2d 110,271 Ala. 615
• Court: Alabama Supreme Court
• Parties: NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY v. Kay WILSON.

Page 110

126 So.2d 110

271 Ala. 615

NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY v. Kay WILSON.

8 Div. 13.

Supreme Court of Alabama.

Nov. 3, 1960.

Rehearing Denied Jan. 26, 1961.

Bell, Morring, Richardson & Cleary, Huntsville, for appellant.

Smith & Johnston, Huntsville, and Hare, Wynn & Newell, Birmingham, for appellee.

The following charge was given at plaintiff's request:

'1A. I charge you gentlemen of the jury that if you are reasonably satisfied from the evidence in this case that the defendant railroad was guilty of negligence, and that the Planters' Warehouse and Storage Co. through Mr. Brooks or some person other than plaintiff, was also guilty of negligence and that the negligence of both combined and concurred and proximately caused the plaintiff to be injured as claimed in the complaint, then and in that event, any such negligence on the part of the warehouse company, if there was any, would not be a defense in this case brought against the railroad company.'

PER CURIAM.

Kay Wilson, appellee, was employed by Planters' Warehouse and Storage Company at its cotton warehouse in Huntsville, Alabama, on June 6, 1956, the day on which the accident, the basis of this action, occurred. He had been so employed since 1919. Throughout that time Nashville, Chattanooga and St. Louis Railway Company had a spur track adjacent to a loading platform on the west side of the warehouse under a contract between it and the warehouse company, dated April 5, 1916. The appellant from time to time brought cars in and out on the warehouse spur track, a fact known to appellee. At the time of the accident appellee was engaged in cutting grass and weeds along the appellant's right of way between the spur track and the warehouse platform using a gasoline powered lawn mower. While so engaged he was struck on the hip by a freight car which the appellant's yard engine was pushing along the side track for unloading into the warehouse. Appellee's head was propelled against some part of the warehouse platform, resulting in the injuries alleged as the basis of this suit. At this particular time appellant had no lookout on this car, which we conceive to have been its duty under the circumstances. East Tennessee, V. & G. R. Co. v. King, 81 Ala. 177, 2 So. 152; Louisvill & N. R. Co. v. Williams, 199 Ala. 453, 74 So. 382; Alabama, T. & N. R. Co. v. Huggins, 205 Ala. 80, 87 So. 546.

Wilson filed his complaint in the Circuit Court of Madison County, Alabama. The case went to the jury on Counts Two-A and Three-A, charging simple negligence, and Count 4, charging wantonness, demurrers to which were overruled. Issue was joined on these counts. Upon trial of the cause the jury returned a verdict for the plaintiff (appellee) expressly under Counts Two-A and Three-A of the complaint as amended, fixing his damages at $32,000.

Appellant filed a motion for new trial which was denied and this appeal followed.

Appellant assigns as error the overruling of its demurrers to the two counts as amended based on negligence under which the jury expressly returned its verdict as well as numerous rulings by the trial court on the evidence, the overruling of its motion for new trial and the giving or refusal to give certain charges to the jury and portions of the court's oral charge.

Primarily the various contentions raised by appellant in its numerous assignments of error can be resolved by a determination of the status of the appellee at the time of the accident complained of.

The record establishes, and it is undisputed, that at the time of the accident the plaintiff (appellee) was an employee of Planters' Warehouse and Storage Company, engaged in his work for his employer at the time and place he was injured. The railroad engine and car were being operated on a spur track built to serve the plant of the appellee's employer and the interest of the railroad in the right of way was determined by the contract entered into between it and the employer of appellee. This contract reserved the right and imposed the duty upon the warehouse company to have its employees perform their business duties upon or around the track, and it provided in part:

'5. The Applicant [warehouse company] agrees that, without the written consent of the Railway, it will not direct or permit the use of said track--by or for the benefit of any other party not one of the parties hereto. * * *.

'6. The said Applicant also agrees * * * to keep the track free from obstruction; * * *.

'7. The Applicant agrees that the Railway shall have the privilege of using said track--free of charge in any manner it may desire, provided, however, that such use shall not interfere materially with the business of said Applicant.'

To further describe the situation at the time of the accident: An engine of the defendant, appellant, was backing and pushing a box car from north to sough along the spur track. Appellee was cutting grass while standing between the spur track and the platform of the warehouse with his back to the approaching train, facing southeast. It was stipulated that the track was so close to the platform as to be an unsafe distance, about 6 feet 1.5 inches. There is conflict in the evidence as to whether the appellee was standing by the side of the track, as he testified, or whether he was emerging from under the platform in a stooped position moving backward as witnesses for appellant testified. There was further conflict in the evidence as to the distance in which it would be possible to stop the engine under the conditions and circumstances involved, ranging from 20 feet, according to witnesses for appellee, to 70 feet according to the appellant's engineer. All of these conflicts in the testimony were properly submitted to the jury.

Appellant contends that the trial court erred in overruling its demurrers to the counts as amended and in not giving certain charges to the jury, based upon its assertion that the appellee was a trespasser or mere licensee at the time of the accident and was under a duty to 'stop, look, and listen' before going upon or near the track of appellant. A determination of this question depends upon the status of the appellee at the time of the accident, or stated differently, a determination of the duty owed by the railroad to persons in his position.

The law on this subject is generally stated as follows:

'A railroad company which operates a spur track upon private property owes a duty of ordinary care to prevent injury to persons working about such premises, both as to the condition of the track and the operations of its trains. What amounts to negligence in any particular case depends, of course, upon the circumstances under which the injury occurred. The fact that the owner of the premises may owe a duty to warn his employees of danger from switching operations does not excuse a railroad company from its duty to notify or warn such employees of the danger.' 44 Am.Jur. 666, Railroads, § 441.

'Where one is engaged on or about railroad tracks or cars in work which is mutually beneficial to him and the railroad company, he is generally held to be there by the express or implied invitation of the company, and is regarded as an invitee, or as a licensee with an interest, and he cannot be considered a trespasser, a mere licensee, or a volunteer.' 75 C.J.S. Railroads § 903, p. 285.

The appellee in this case was undisputedly pursuing his duties as an employee of the warehouse company under the terms of the contract between his employer and appellant railroad. As such it was necessary for him to be near the track of the appellant. We approved the following statement in an analogous situation in Louisville & N. R. Co. v. Williams, supra [199 Ala. 453, 74 So. 383]:

'The law does not require persons at work on the track to maintain a constant lookout for approaching trains and at the same time pursue their labor, but it does require of the operatives of trains the exercise of an active vigilance to avoid injuring such persons and that they should give reasonable danger signals to attract the attention of men so employed so as to enable them to get out of the way...