Seaboard Air Line Ry. Co. v. Latham

• Decision Date: 08 April 1930
• Docket Number: 6 Div. 616.
• Citation: 23 Ala.App. 490,127 So. 679
• Parties: SEABOARD AIR LINE RY. CO. v. LATHAM.
• Court: Alabama Court of Appeals

127 So. 679

23 Ala.App. 490

SEABOARD AIR LINE RY. CO. v. LATHAM.

6 Div. 616.

Court of Appeals of Alabama

April 8, 1930

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages for personal injuries by Earnest Latham, a minor suing by his next friend, John Latham, against the Seaboard Air Line Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, for appellant.

W. A Denson, of Birmingham, for appellee.

SAMFORD J.

The plaintiff was a section hand working with a group of other employees, under the supervision of a foreman, cutting weeds briars, and underbrush, from defendant's right of way. The plaintiff was using in this service a grass blade called a scythe. While engaged in this service and in the line of his duty and being unaware of its presence, he cut into a wasps' nest. The wasps being disturbed immediately attacked plaintiff, and in his efforts to escape plaintiff dropped or threw down the scythe and began fighting the wasp. While so engaged plaintiff became entangled or tripped over the blade and was cut severely on the leg near the foot, which proved a permanent injury. Plaintiff's foreman having supervision of the work being done and of plaintiff knew of the location of the wasp nest; of plaintiff's proximity thereto; that a continuance of the work being done by plaintiff in the manner it was being done would bring plaintiff in contact with the nest and its colony. With this knowledge defendant's foreman failed to warn plaintiff of his approaching danger.

While it is true as contended that the Federal Employers' Liability Act creates no right that did not exist at common law (Burnett v. A. C. L. R. Co., 163 N.C. 186, 79 S.E. 414), the statute provides that a common carrier by railroad while engaged in interstate commerce shall be liable in damages to any person suffering injury while he is employed in such commerce, for such injury resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier. Section 1, Employers' Liability Act, approved April 22, 1908 (45 USCA § 51). It is conceded that if liability attaches such liability is within the purview of the above section.

It is insisted that the attack of the wasps on plaintiff was a risk ordinarily incident to the service in which plaintiff was engaged, and therefore the risk was assumed by him. Since it was the duty of plaintiff to cut the weeds and briars on defendant's right of way under the orders of the foreman, it was the duty of defendant to use reasonable care to protect plaintiff from danger in the execution of the orders. If defendant's foreman had not been advised of the presence of the wasps and therefore of the danger incident to the service, defendant could not be held liable. But with a knowledge of the danger the foreman allowed plaintiff to proceed with the carrying out of his order in the usual way of doing such things when if plaintiff had been warned, the duty could have been performed in such way as to minimize, if not entirely remove the danger. The evidence here presents no ordinary risk, but is extraordinary in that it lies outside of the sphere of the normal and one which might have been obviated by the exercise of reasonable care on the part of defendant's foreman. Vohs v. A. E. Shorthill & Co., 130 Iowa, 538, 107 N.W. 417; 39 Corpus Juris 692, 896; Holland v. T. C., I & R. Co., 91 Ala. 444, 8 So. 524, 12 L. R. A. 232.

It is argued by appellant that owing to the nature of the employment and the character of the work being done there was no duty resting on defendant to determine if there were wasps ahead before allowing plaintiff to proceed with his work. This may be conceded, but can it be seriously contended that if defendant knew the location of a nest of rattle snakes, lying in the way plaintiff must proceed with his work, there would be no duty resting on defendant to warn plaintiff of the danger of proceeding to do the work in the ordinary manner? The question furnishes its own answer. The foreman, having knowledge of the latent danger incident to a wasps' nest hidden in the bushes was under duty to warn...