Reynolds v. Atlantic Coast Line R. Co.
| Decision Date | 24 June 1948 |
| Docket Number | 6 Div. 643. |
| Citation | 36 So.2d 102,251 Ala. 27 |
| Parties | REYNOLDS v. ATLANTIC COAST LINE R. CO. |
| Court | Alabama Supreme Court |
Rehearing Denied June 30, 1948.
Writ of Certiorari Granted Oct. 25, 1948. See 69 S.Ct. 81.
Appeal from Circuit Court, Jefferson County; Whit Windham Judge.
Jackson, Rives & Pettus, of Birmingham, for appellant.
Graham, Bibb, Wingo & Foster, of Birmingham, for appellee.
This is an action under the Federal Employers' Liability Act by Mrs. Marie Reynolds, who sues as the administratrix of the estate of her husband Hury O. Reynolds, deceased, against the Atlantic Coast Line Railroad Company to recover damages for his death. 45 U.S.C.A. § 51 et seq.
The complaint as originally filed and as subsequently amended consisted of twelve counts. Under Rule 28 of this Court, Code 1940, Tit. 7 Appendix, however, the record has been abridged and for the purposes of this appeal the complaint consists only of counts 10, 11 and 12.
Defendant's amended demurrer to counts 10, 11 and 12 of the complaint was sustained, and because of this adverse ruling plaintiff suffered a nonsuit, and reserved that ruling for this Court's decision. There is thus here presented the single question of the sufficiency of counts 10, 11 and 12.
In count 10, after the required averments of interstate commerce, the plaintiff alleged that her husband had been killed on November 10, 1945, near Lake Harbor, Florida, while working as a member of the train crew of defendant's freight train No. 567. The culpability ascribed was that defendant failed to furnish the deceased with a reasonably safe place to work. It was alleged that freight train No. 567 consisted of an engine and tender and sixteen cars and a caboose; that the ten cars immediately behind the tender were to be cut out of the train at Lake Harbor, and left upon a siding there; that in connection with the intended switching movement, the deceased had taken his position at the lead of the sixth car ahead of the caboose (and just back of the lead ten cars), where the train was thus to be uncoupled; that as said freight train approached the point where the switching movement was to be made and where the ten cars were to be detached from the train, it passed over the track rendered dangerous by the close proximity of tall canes negligently permitted to grow and remain there; that in the performance of his duties, the deceased was required to pass a signal to the engineer to indicate to him when to stop the train at the appropriate point so as to uncouple the first ten cars from the remainder of the train, and place them on the side track. The count then charged that the signal, which the deceased was thus required to pass to the engineer, ordinarily would have been given as the deceased was suspended from the right side and lead end of the sixth car ahead of the caboose, but that in this instance he was unable to follow that routine because of the tall canes which, as the train moved forward, might scrape him off the side of the car; that he was thus required to cross from the lead end of the sixth car ahead of the caboose, a gondola car, in order to climb aboard a tank car immediately in front of said gondola car as from the side of the tank car he would be above the top of said tall canes so that said canes would not strike him as the moving train passed said canes, and as he could give said signal from the side of the tank car which would be visible to the engineer; that while thus crossing from the one car to the other, the train being in motion, the deceased was thereby caused to enter a place of much greater danger than that with which he would have been confronted had he been able to signal in the ordinary and usual fashion from the right end of the gondola car; and that while so acting under those circumstances of enlarged danger, he fell between the cars and was run over and killed.
In count 11 the plaintiff ascribes her husband's death to the negligent failure of defendant to provide an adequate number of competent fellow servants to work with him in the performance of their duties on the occasion of his death. That the defendant, as a co-worker of the deceased, furnished a brakeman named Skelly, who was so incompetent and unskilled that he could not perform his appointed duties as brakeman to signal the engineer when to stop the train preliminary to the intended switching movement, and that Reynolds, the deceased, was thus required to take over Skelly's job (thereby quitting a safer place of work and the performance of safer labors, in turn undertaken by defendant's conductor), and while thus performing the appointed duties of Skelly, who at that time was standing idle and doing no work whatsoever, Reynolds fell between the two cars of the moving train and was run over and killed.
The theory of liability asserted in count 12 is, in substance, a combination of counts 10 and 11 stated in somewhat greater particularity. It relies upon defendant's negligent failure to furnish the deceased with a reasonably safe place to work, coupled with its negligent failure to provide an adequate number of competent fellow servants to work with him. It charged that defendant provided Skelly as one of the two brakemen on the train; that Skelly was incompetent, and that his duties had to be assumed by deceased, who ordinarily would have signaled the engineer as outlined in count 10, but that because of the danger from the canes, and while performing Skelly's duties, and in attempting to cross from one car to another he fell between the cars and was killed.
The case of course is governed by the federal decisions, and as we have recently said in the case of Atlanta, Birmingham, and Coast R. R. Co. v. Cary, Ala.Sup., 35 So.2d 559, 560: 'Under these decisions the Federal Employers' Liability Act does not make the employer the insurer of the safety of the employe while on duty. And the basis of liability is the negligence of the employer, not the fact that injuries occur. Negligence must be 'in whole or in part' the cause of the injury.'
A party claiming under the Act must in some adequate way establish negligence, and it must appear that such negligence was the proximate cause, in whole or in part, of the accident.--Tennant v. Peoria and Pekin Union Railway Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Tiller v. Atlantic Coast Line R. R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Atlanta, Birmingham and Coast R. R. Co. v. Cary, supra; Alabama Great Southern R. Co. v. Davis, 246 Ala. 64, 18 So.2d 737.
It is well understood that negligence may be averred in general terms, but if the...
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