Salotti v. Seaboard Coast Line R. Co.

• Decision Date: 22 August 1974
• Citation: 299 So.2d 695,293 Ala. 1
• Parties: Mary E. SALOTTI, as Adm'x of the Estate of Joseph Salotti, Deceased, v. The SEABOARD COAST LINE RAILROAD CO., a corp. SC 520.
• Court: Alabama Supreme Court

Page 695

299 So.2d 695

293 Ala. 1

Mary E. SALOTTI, as Adm'x of the Estate of Joseph Salotti, Deceased, v. The SEABOARD COAST LINE RAILROAD CO., a corp.

SC 520.

Supreme Court of Alabama.

Aug. 22, 1974.

Rehearing Denied Sept. 19, 1974.

Hare, Wynn, Newell & Newton, Birmingham, DeParcq, Anderson, Perl, Hunegs & Schwebel, Minneapolis, Minn., for appellant.

L. Vastine Stabler, Jr., and W. Stancil Starnes, Birmingham, for appellee.

COLEMAN, Justice.

Plaintiff appeals from judgment for defendant, based on verdict of a jury, in an action under the Federal Employers' Liability Act, Title 45, § 51 et seq., U.S.Code.

Plaintiff sued as administratrix of the estate of her husband, Joseph Salotti, deceased. Plaintiff alleges that on September 17, 1970, defendant was a common carrier operating a railroad in interstate commerce; that on said date plaintiff's intestate was employed by defendant as a carman; that while engaged in his work as meployee of defendant at Hamlet, North Carolina, on said date, plaintiff's intestate was caused to suffer a coronary attack and died; that plaintiff's intestate was fatally injured as the result in whole or in part of negligence of the officers, agents, or employees of defendant in failing or neglecting to provide intestate with a reasonably safe place to work, or neglecting to provide an adequate number of employees to do the work, or negligently assigning deceased to work under conditions that were too dangerous when defendant knew or should have known that assigning deceased to work under those conditions would impose inreasonable and dangerous risks.

Defendant pleaded in short by consent the general issue with leave, etc. The defenses presented were the general issue and contributory negligence.

The evidence tends to show that plaintiff's intestate was sixty-four years old at time of death and had worked for the railroad thirty years. He suffered a heart attack in February, 1968. After recovery he returned to work. On February 27, 1970, he was admitted to North Carolina Memorial Hospital in Chapel Hill, North Carolina, suffering from congestive heart failure. He was discharged from the hospital on May 8, 1970. He was certified for light work and returned to work.

On the morning of September 17, 1970, plaintiff's intestate went to work at 7:30. At about 8:00 o'clock, he was working on the wheels at one end of a railroad car and was tightening a bolt. Two other workers of the three-men crew were working at the other end of the same car. Intestate called to one of the other two men and shortly thereafter was found lying in a prone position. He died about this time. His death certificate recites that the immediate cause of death was 'Myocardial Infarction' due to or as a consequence of 'Arterio-Sclerotic Ht. Disease.'

The case was submitted to the jury who returned a verdict for defendant. The errors asserted by plaintiff will be considered in the order in which they are argued in brief.

Part 1.

Assignment of error No. 4 recites:

'4. The trial court erred in refusing the plaintiff's written Charge 3:

"Plaintiff's Requested Charge No. 3

"Section 4 of the Federal Employers' Liability Act (45 U.S.C.A. § 54 provides, in part, that:

'In any action brought against any common carrier * * * to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * * *. " (R. 8)'

An action under Federal Employers Liability Act for injury or death of employees of a railroad engaged in interstate commerce is governed by federal court decisions. 45 U.S.C.A. § 51 et seq. L. & N.R. Co. v. Green, 255 Ala. 642, 53 So.2d 358.

In support of Assignment 4 plaintiff cites Bayles v. L. & N.R. Co., 272 Ala. 188, 129 So.2d 679, and Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610.

In Bayles, this court held that the trial court erred in sustaining demurrer to Count B of plaintiff's amended complaint. Defendant argued that it would have been entitled to the affirmative charge as to Count B and, therefore, that sustaining demurrer to Count B was harmless error. This court held that the affirmative charge for defendant is properly given in FELA cases only when there is a complete absence of probative facts to support plaintiff's claim of negligence on the part of the railroad; that such complete absence of probative facts to support Count B did not exist in Bayles; and, therefore, that sustaining demurrer to Count B was not harmless error. The judgment for defendant was reversed.

No requested charge similar to plaintiff's Charge 3 in the instant case was considered by this court in Bayles, and Bayles is not pertinent to the question whether the trial court erred in refusing plaintiff's Charge 3 in the instant case.

In Tiller, the trial court granted defendant's motion for a directed verdict on the grounds (a) that the evidence disclosed no actionable negligence and (b) that the cause of death was speculative and conjectural. The Circuit Court of Appeals, interpreting the decision of the district court as resting on a conclusion that the evidence showed no negligence, affirmed. The Supreme Court of the United States concluded that the question of negligence on the part of the railroad and on the part of the employee should have been submitted to the jury and reversed the judgment.

In Tiller, no charge similar to plaintiff's Charge 3 in the instant case was considered. In the instant case, the question of negligence was submitted to the jury.

In Dilley v. Chesapeake & Ohio Ry. Co., 6 Cir., 327 F.2d 249, the court considered an FELA case in which defendant pleaded contributory negligence but did not plead assumption of risk. In the instant case, defendant presented the defense of the general issue and contributory negligence but not assumption of risk. In Dilley, plaintiff undertook to inject assumption of risk into the trial of the case. The U.S. Court of Appeals said:

'Since a new trial must be granted we think it appropriate to comment briefly on the charge given the jury on assumption of risk. After all the evidence was in the defendant, anticipating the plaintiff would argue that the defense offered by the defendant was the defense of assumption of risk and that such a defense was not available under the statute, objected to the doctrine of assumption of risk being referred to either in instructions or in plaintiff's argument. The objections were overruled and the plaintiff in her argument defined assumption of risk and, as anticipated, stated to the jury that the defense offered was nothing but the defense of assumption of risk and by specific legislative enactment (53 Statutes 1404; 45 U.S.C. § 54) such a defense was not available to the defendant. The defendant in argument responded that assumption of risk was not in the case and was not its defense. The court in instructing the jury charged on assumption of risk by quoting the pertinent portion of Section 4, of the Act, without further explanation of the doctrine. The defendant urges that the effect of the plaintiff's argument and the charge was to inform the jury that assumption of risk was in the case, since the plaintiff so argued and the court charged on it, and that it was no defense; also that the jury was unjustifiably forced to engage in the puzzling venture of distinguishing between assumption of risk and contributory negligence. The defendant pleaded contributory negligence in this case and did not plead assumption of risk. A correct instruction on contributory negligence permitting the jury to consider the actions of plaintiff's decedent in the light of a dangerous condition known to him is proper and it is not necessary for the court to instruct on assumption of risk. Gowins v. Pennsylvania R.R., 299 F.2d 431 (6th Cir. 1962). In Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 6o S.Ct. 444, 87 L.Ed. 610 (1943), it was held 'that every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment * * *.' and in his concurring opinion Justice Frankfurter states, 'Because of its ambiguity the phrase 'assumption of risk' is a hazardous legal tool. As a means of instructing a jury, it is bound to create confusion. It should therefore be discarded.' In view of these expressions, when it is necessary to distinguish between assumption of risk and contributory negligence the instructions should carefully and fully make the distinction. However, where the jury as in this case has been presented with no evidence and has heard nothing from any witness or pleading with respect to the doctrine of assumption of risk until the doctrine was defined and its application to the facts of the case debated in final arguments of counsel and thereafter merely mentioned in court instructions it is believed that it would have been the better practice to have eliminated any reference to the doctrine. See Seaboldt v. Pennsylvania R.R., 290 F.2d 296 (3rd Cir. 1961); DePascale v. Pennsylvania R.R., 180 F.2d 825, 827 (3rd Cir. 1950); Texas and Pacific Ry. Co. v. Buckles, 232 F.2d 257 (5th Cir. 1956), cert. denied, 351 U.S. 984, 76 S.Ct. 1052, 100 L.Ed. 1498; Koshorek v. Pennsylvania R.R., 318 F.2d 364 (3rd Cir. 1963).' (327 F.2d at 253, 254)

In Clark v. Pennsylvania Railroad Co., 2 Cir., 328 F.2d 591, on an appeal by plaintiff the court affirmed judgment for defendant. The court held that the trial court did not err in refusing a requested charge on assumption of risk. Among other things the court said:

'On the merits, however, there was no occasion for the giving of any instruction whatever on the subject of assumption of risk. . . .' (328 F.2d at 595)

In Ellis v. Union Pac. R. Co., 148 Neb. 515, 27 N.W.2d 921, in reversing a judgment for plaintiff, the court said...