Porter v. Louisville & N.R. Co.

• Decision Date: 07 February 1918
• Docket Number: 8 Div. 68
• Citation: 78 So. 375,201 Ala. 469
• Parties: PORTER v. LOUISVILLE & N.R. CO.
• Court: Alabama Supreme Court

78 So. 375

201 Ala. 469

PORTER v. LOUISVILLE & N.R. CO.

8 Div. 68

Supreme Court of Alabama

February 7, 1918

Rehearing Denied April 7, 1918

Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.

Suit by Irvin C. Porter, administrator of the estate of L.O. Gulley deceased, against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Callahan & Harris, of Decatur, for appellant.

Eyster & Eyster, of Albany, for appellee.

GARDNER J.

This suit is confessedly brought under the federal Employers' Liability Act, and in such cases contributory negligence is not a complete defense, but is only considered by way of reduction of damages.

The pleas, the substance of which are set out in the foregoing statement of the case, were pleaded in bar to the cause of action, and, if they were in fact pleas of contributory negligence, the demurrer taking the point should have been sustained.

Speaking of the difference between the defense of contributory negligence and that of assumption of risk, the Supreme Court of the United States, in Seaboard Air Line R.R. Co. v. Horton, 233 U.S. 492, 34 Sup.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann.Cas. 1915B, 475, said:

"The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employé; and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employés in similar circumstances would use. On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employé. The risks may be present, notwithstanding the exercise of all reasonable care on his part."

See, also, Yazoo & Miss. Val. R.R. Co. v. Wright, 235 U.S. 376, 35 Sup.Ct. 130, 59 L.Ed. 277; L. & N.R.R. Co. v. Fleming, 194 Ala. 51, 69 So. 125; Southern Ry. Co. v. Fisher, 74 So. 580.

We construe these pleas as showing a want of ordinary care and prudence on the part of the plaintiff's intestate in the performance of his duties, and as charging a case of aggravated negligence; that these pleas were therefore pleas of contributory negligence, and not of assumption of risk. The court in its oral charge to the jury instructed them that these pleas were of assumption of risk. The action of the court in overruling the demurrer to said pleas must work a reversal of the cause.

Counsel for appellee in their brief do not seem to controvert the insistence of appellant upon this question, but they urge that any errors committed were without injury, for the reason that the evidence entirely failed to make out a case for the plaintiff. A material portion of the evidence appears in the statement of the case, and need not be here reviewed. It is to be noted that the stationary car (which had the "brakes set") was moved a car length by the impact of the cut of cars on which plaintiff's intestate was acting as brakeman. The evidence also tends to show that these cars were moving at an accelerated speed at the time of the collision.

Plaintiff's intestate was found under the train, and one car had passed over him, and the glass from his broken lantern was found on the bumpers between the cars. It can clearly be inferred that at the time of the collision he was at the brakes on the rear of the fifth car, and after the collision the train moved one car length, and only one car passed over him.

We are of the opinion that the jury could readily infer from the facts and circumstances surrounding his injury that the deceased fell under the train at the time of the collision between the cars, produced by the sudden impact of the...