Seaboard Air Line Ry. Co. v. Hackney

• Decision Date: 12 January 1928
• Docket Number: 7 Div. 736
• Citation: 115 So. 869,217 Ala. 382
• Parties: SEABOARD AIR LINE RY. CO. v. HACKNEY.
• Court: Alabama Supreme Court

115 So. 869

217 Ala. 382

SEABOARD AIR LINE RY. CO. v. HACKNEY.

7 Div. 736

Supreme Court of Alabama

January 12, 1928

Rehearing Denied April 5, 1928

Appeal from Circuit Court, Cleburne County; R.B. Carr, Judge.

Action by E.C. Hackney against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Brown J., dissenting in part.

Statement by Somerville, J.

The plaintiff (appellee), a section hand, sued the defendant (appellant) for damages for personal injuries suffered while unloading cross-ties from defendant's freight train.

The case was tried on counts 1 and 2 of the complaint. Count 1 is as follows:

"On, to wit, the 14th day of February, 1925, the defendant was operating a train at and near Borden Springs Ala., which train was engaged in commerce between the state of Alabama and Georgia, and on said date the plaintiff, who was employed by the defendant as a section hand, was required by his foreman, Henry McMichael, acting within the line and scope of his employment by the defendant, to board said train, and while said train was slowly moving along the track at or near the first milepost east of Borden Springs, Ala and to throw from said slowly moving train cross-ties, which cross-ties were to be used in repairing the railroad track of the defendant at or near said place; and whilst the plaintiff was engaged in said business of unloading one of said cross-ties, another cross-tie fell upon or against him, and crushed his head between said two cross-ties, thereby breaking his nose, and knocked a hole in his head, and rendered him unconscious for a long time, and [recites numerous injuries]. *** Plaintiff avers that his said suffering and injuries and loss were proximately caused by the negligence of his said foreman, Henry McMichael, this said McMichael being negligent in this, in ordering the plaintiff to work on said train and remove said ties therefrom whilst the same was

in motion, when he knew, or could have known by the use of due diligence, that it was dangerous to do so. Plaintiff avers that he had to obey the orders of the said Henry McMichael under his said employment."

Count 2 contains the same allegations of fact as count 1, and charges negligence as follows:

"Plaintiff further avers that his said suffering and injury and loss was caused by the officers, agents, or employés of the defendant, whose names are unknown to the plaintiff, in charge of said train by negligently causing or allowing said train to suddenly lurch and thereby caused said cross-tie to fall upon or against the plaintiff, and injure him as herein stated."

The demurrers to these counts raise three points: (1) That the count did not show that, at the time of his injury, Hackney was performing duties under his employment in interstate commerce; (2) that the count did not show that at the time of the plaintiff's injury, the defendant was engaged in interstate commerce with reference to the particular duties which the plaintiff was performing; (3) that the count did not show that Hackney was injured while engaged in interstate commerce within the meaning of the Federal Employers' Liability Act (45 USCA §§ 51-59; U.S.Comp.St. §§ 8657-8665).

These demurrers were overruled, and defendant pleaded to each count the general issue and several special pleas setting up the defense of assumption of risk, to each of which demurrers were overruled.

The general scope and substance of these pleas appears from pleas 4 and 5.

Plea 4 averred:

That the flat car upon which the ties were piled was suitable and proper for the purpose for which it was used. That it was customary and usual in the business in which the defendant was engaged to unload ties from a flat car which was being moved along the right of way. That it was one of the duties of a section hand to unload cross-ties from flat cars while the flat cars were being moved slowly along the track, and that the plaintiff was a section hand in the employ of the defendant at the time the injury occurred, and that he knew or should have known, that it was his duty as such section hand to stand upon flat cars and unload cross-ties therefrom on the right of way of the defendant, and that "the danger involved in removing the support and maintenance from a pile or stack of ties which rose to a height of from five to six feet and from which the tie which injured the plaintiff fell was obvious to any person having a knowledge of elementary natural laws, and that the danger was open and obvious to plaintiff, and said danger was a risk assumed by plaintiff by remaining in defendant's employ and engaging in throwing said ties from said flat car along the defendant's right of way while the same was being moved slowly along said track along said right of way."

Plea 5 averred:

That the flat car upon which the ties were piled was suitable and proper for the purpose for which it was used. That it was customary and usual in the business in which the defendant was engaged to unload ties from a flat car which was being moved along the right of way. That it was one of the duties of a section hand to unload cross-ties from flat cars while the flat cars were being moved slowly along the track, and that the plaintiff was a section hand in the employ of the defendant at the time the injury occurred, and that he knew, or should have known, that it was his duty as such section hand to stand upon flat cars and unload cross-ties therefrom on the right of way of the defendant. That "the danger of ties falling upon or against the plaintiff caused by the position of the ties, which position was produced by jars and jerks of the train ordinarily incident to the movement of the car during the haul from the place where the car was loaded to the place where it was unloaded by the plaintiff, was a danger ordinarily incident to the plaintiff's service as a section hand known and appreciated by plaintiff, and was a risk assumed by plaintiff by remaining in defendant's employ and engaging in unloading said ties from said car as alleged."

The evidence showed without dispute that plaintiff was employed by defendant as a section hand; that on the occasion of his injury he was unloading cross-ties from a flat car on defendant's local freight train, as he had been directed by his section foreman, McMichael, to do; that when he was stooping to take up the last tie of one tier of the cross-ties the top tie of the next tier toppled over on his head and caused the injuries complained of. It also appeared without dispute that the speed of the train, while these ties were being unloaded and deposited along the side of the track, did not exceed two or three miles an hour, the train just barely moving; that this was the usual method of handling ties; and that these ties were stacked in tiers five or six ties high.

According to plaintiff's testimony, the stacks were about as high as his head, and according to the foreman McMichael's testimony they were not over 50 inches high.

As to the directions given plaintiff for doing this work, he testified:

"The morning of the accident he (McMichael) told me to tamp some ties, that I was a green hand and he would help me to unload them. *** He is the man who directed me how to work and what work to do. *** He took the first tie, and showed me how to do it. Then I unloaded 30 or 40 or 50 after that just like he showed me to the best I could. *** The car was longways this way, and the ties were lying crossways this way. *** He told me to pick up that end of the tie over there and slide it to him and he would throw it off, and I did that and he slid it off."

As to the mode of handling the ties, plaintiff testified:

"I would reach down and get one and slide it half off of the car and hand it to Mr. McMichael. I took some off the top. I did not have to reach down and get those. I just took my hand and slid it out this way to where it would get just about overbalanced, and would slide it out on top off the other tie, and it would get unbalanced, and Mr. McMichael would turn it over. I was sliding it to McMichael, and he would throw it off."

McMichael testified:

"He (plaintiff) would shove the tie something like 3 or 4 feet; then I would turn it over. That is all there was to it, just a man picked up a tie and shoved it three or four feet, and I would pick it up and turn it off the car; he would have the end off of the car."

Plaintiff testified that he had never unloaded

cross-ties before, nor seen them unloaded, and was inexperienced in the work.

McMichael testified that:

"Section hands are not put through any course of training before they are allowed or permitted to load or unload cross-ties."

Describing the accident, plaintiff testified:

"I reached down to pick up another tie, and it was the very bottom tie lying on the car. It was lying flat on the car. When I got down to get that there was one lying above that fell on me from the next layer of ties. *** I did not see this tie fall off on me. I had seen the tie. I knew there were four or five ties stacked up there. *** I knew that when I stooped down. I didn't know it was going to fall."

Gafnea, defendant's flagman on this train, was standing on the pile of ties about ten feet from plaintiff. He testified that "the top tie on the tier next to where he was working rolled over and hit him on the head."

McMichael, the section foreman who was assisting plaintiff in handling the ties, testified:

"I saw the tie fall, after it started; I tried to catch this tie and hold it; I threw my hands under it, and the tie was a little heavier than I could hold. *** I made an effort to catch the tie and missed it. *** I had hold of the tie when it hit him. *** I did not touch the tie before it

...