Pollard v. Coulter

• Decision Date: 15 June 1939
• Docket Number: 6 Div. 402.
• Citation: 238 Ala. 421,191 So. 231
• Parties: POLLARD v. COULTER.
• Court: Alabama Supreme Court

191 So. 231

238 Ala. 421

POLLARD v. COULTER.

6 Div. 402.

Supreme Court of Alabama

June 15, 1939

Rehearing Denied Oct. 12, 1939.

Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.

Action by Nelle Seale Coulter against H. D. Pollard, as receiver of Central of Georgia Railway Company and B. L. Cook, for damage for personal injuries sustained when train on which plaintiff was a passenger was derailed. From a judgment for plaintiff defendant Pollard, as receiver, appeals.

Affirmed.

W. H Sadler, Jr., and E. L. All, both of Birmingham, for appellant.

Harsh Harsh & Hare, of Birmingham, for appellee.

BOULDIN Justice.

Action for personal injuries by a passenger upon a railway train resulting from a derailment of the coach upon which plaintiff was a passenger.

This case arose from the same derailment considered in the case of Pollard, Receiver, v. Williams, 191 So. 225, an action by another passenger on the same train, this day decided.

While the cases were tried at different times, the issues in the main were the same, the tendencies of the evidence touching the liability of the carrier were substantially the same, and the assignments of error insisted upon in the two cases are the same, with few exceptions. We refer to the decision in the Williams case for a discussion of the questions of law and fact common to both cases.

One question presented in the instant case by assignments of error and earnestly presented in briefs did not arise in the Williams case.

In the instant case, B. L. Cook, the section foreman, an employee of the carrier, was joined as party defendant.

The jury returned a verdict against the carrier, but in favor of the employee. The motion for new trial raising the question of the validity of such verdict was overruled.

Where the liability of the employer is predicated upon the negligence of an employee under the doctrine of respondeat superior, a verdict holding the employer liable but acquitting the employee, as a general rule, is self-contradictory, carries its condemnation on its face, and is due to be set aside on motion. Walker v. St. Louis-San Francisco R. Co., 214 Ala. 492, 108 So. 388.

The complaint on which this case was tried avers: "And on said occasion defendant B. L. Cook was section foreman for said Pollard as receiver of said Railway Company, in immediate charge and supervision of the said track and roadbed at the point above mentioned," and concludes: "Plaintiff further avers that she suffered said injuries and damage as a proximate consequence of the negligence of defendants in or about carrying plaintiff as such passenger upon said railway on said occasion."

This complaint does not predicate the liability of the carrier solely on the negligence of the section foreman. As for the pleadings a verdict against the carrier could be sustained because of negligence of managing officers, or of any one or more agents in the maintenance department from which track conditions arose causing the derailment. Alabama Great Southern Railroad Co. v. Bailey, 112 Ala. 167, 177, 20 So. 313.

Appellant argues, however, that under the evidence, the derailment was either caused by vandalism for which the carrier would not be liable, or from the condition of the track at the point of derailment due to negligence in maintenance, and, if so, this could only arise from negligence of the section foreman.

Appellee takes the position that the degree of care, the highest degree of care consistent with practical operations, required of the carrier is not applicable to the employee when sued by a passenger.

This view is sustained by the case of May v. Chicago, B. & O. R. Co., 284 Mo. 508, 225 S.W. 660. Briefly stated, this case holds that the highest practicable degree of care required of carriers of passengers is expressive of a public policy, and grows out of the contractual relation of carrier and passenger, the obligation to carry safely in so far as the highest degree of care consistent with practical operations will assure safety; that the employee is under no contractual obligation to the passenger, that the employee's obligation to him is to exercise the ordinary care which every person owes to another in position to be injured because of his negligence. The same case holds that the employee is under contractual obligation to his employer to exercise the same high degree of care in the performance of his task as is required of his employer, the duty to so perform that his employer will be protected, but that this high duty of care does not extend to the passenger.

The case finds some...