Shepherd v. Southern Ry. Co.

Decision Date16 July 1970
Docket Number6 Div. 728
Citation288 Ala. 50,256 So.2d 883
CourtAlabama Supreme Court

Rives, Peterson, Pettus, Conway & Burge, W. Engene Rutledge, Birmingham, for appellant.

Cabaniss, Johnston, Gardner & Clark, and Crawford S. McGivaren, Jr., Birmingham, for appellee.

HARWOOD, Justice.

In the suit below the plaintiff claimed damages of $100,000.00 for personal injuries sustained by him in the course of his employment by the defendant as a member of a switch engine crew. The complaint averred that his injuries resulted when the air hoses between two railroad cars became uncoupled, and one of them flailed about, striking him on the left jaw. His jaw was broken and a jaw tooth was knocked out, and he was caused to suffer great physical pain and mental anguish, and had to undergo hospitalization and medical and surgical treatment. The complaint further averred that plaintiff's injuries were the proximate result of a violation by the defendant of one of the Federal Safety Appliance Acts generally known as the 'Air Brake Act' and that the defendant operated its railroad interstate.

The trial resulted in a verdict in favor of the plaintiff, his damages being assessed at $14,000.00.

The defendant duly filed a motion for a new trial and after a hearing thereon the court entered an order granting the motion. This appeal is from such order.

Since the plaintiff and defendant occupy the same relative position on this appeal as they did in the trial below, they will hereinafter be referred to as the plaintiff and defendant.

In the trial on the merits the plaintiff testified that he, in carrying out his employment, had coupled the air hoses between two cars. When he turned on the air valve the hoses came apart, and flailed about. The metal fitting on the end of one of the hoses struck him on the jaw, knocking out a tooth and breaking his jaw.

The plaintiff further testified that on this occasion he had carried out the procedure of coupling the air hoses as he had been instructed in the brakeman's school conducted by the defendant, and as he had previously done in thousands of instances.

He had seen air hoses burst, but these instances involved the rubber part of the hose. This was the first time he had seen an air hose become uncoupled. When coupled air hoses are supposed to remain coupled.

L. R. Willard, an employee of the defendant for some thirteen years, was yard foreman at Winston-Salem, North Carolina, and a member of the switching crew at the time of plaintiff's injuries.

Willard first saw the plaintiff as he came around the end of a car. He was holding his jaw and had a tooth in his hand. The plaintiff could not talk too well but tried to tell him he had been struck in the jaw with an air hose.

Willard and another crew member, Kenneth Roberts, went to the site where the plaintiff had been coupling the air hoses. They found the air hoses uncoupled. They observed nothing wrong with the hoses, and one or the other of them coupled the hoses together, and they observed nothing defective in the couplings.

Willard testified that on two occasions he has seen air hoses become uncoupled when they were not supposed to--it is not a common occurrence but it does occur.

Kenneth Roberts, also a member of the crew with which the plaintiff was working, gave testimony largely in accord with the testimony of the witness Willard.

Roberts did further testify that on one occasion he was riding on the 'floor board' between an engine and a car when an air hose between the engine and the car 'flew apart' and hit him on the leg--'knocked me for a loop, really.' Roberts had coupled the air hoses himself, and had coupled them properly.

R. M. Hutto, who had worked as brakeman and switchman for the defendant for over fifty-one years, until his retirement, testified that he had coupled thousands of air hoses during his employment. Mr. Hutto demonstrated to the jury the proper procedure for coupling air hoses.

He has had air hoses that he had coupled and turned air into in the manner demonstrated, come loose 'lots and lots of times.' Afterwards he would recouple the hoses and they would work all right.

Mr. Hutto further testified that the fifteen years ago he had been hit on the leg by an air hose becoming uncoupled, and that he carried a scar on his leg from this blow. He himself had coupled this hose and cut the air into it when it flew around and hit his leg. Afterwards he recoupled the air hose and it worked properly.

Mr. Hutto further testified that the incident happened 'about fifteen years ago.' At the request of plaintiff's counsel, he exhibited his leg to the jury.

On cross examination Hutto denied that he had testified against the defendant in several cases, or that his frequent visits to the office of plaintiff's counsel had necessarily been in connection with cases against the defendant.

Mr. Hutto further testified on cross examination that he had made a claim for the air hose injury, and had made about three claims for injuries while working for the defendant.

On re-direct examination Hutto testified he had made his claim for the air hose injury through the claim department of the defendant.

For the defendant, Walter Sebastian and R. A. Zimmerman, longtime employees of the defendant, testified they had examined the air hoses pointed out to them as being the ones that injured the plaintiff. Their inspection of the hoses revealed no defect. They coupled the air hose and kicked the hose to see if it would come uncoupled. It did not. No air was let into the hose during this examination.

James Whitler, General Yard Master for the defendant, and Thomas C. Mims, a claim agent, testified that they visited the plaintiff in the hospital. The plaintiff's jaws were wired together at this time.

When asked how the accident happened, the plaintiff stated he did not know. Mims testified that the only thing the plaintiff ever told him about the accident was that he was hit in the face with an air hose.

Clarence Frick, General Foreman in charge of the defendant's mechanical department, examined the air hose shortly after the plaintiff's injury. At this time the air hose had been coupled to an engine and air had been turned into the hose. His inspection revealed no defect in the air hose or the coupling. Mr. Frick testified in detail as to how the couplings of air hoses work, and stated that in his opinion, if properly coupled, an air hose could not come apart upon turning air into it.

At the hearing on the motion for a new trial the court heard arguments as to several grounds of the motion in the absence of a court reporter. Upon the commencement of the hearing of the grounds pertaining to newly discovered evidence (grounds 33, 34, 36 and 37), a court reporter was called in and this portion of the hearing was taken down.

The defendant offered the affidavits of C. G. Crawford and Hon. Leigh M. Clark, attorney for the defendant. The attorney for the defendant then announced he had subpoenaed R. M. Hutto, 'to make him available for the court' though he did not wish to place Hutto on the stand unless it was understood that he would be the court's witness.

Plaintiff's counsel made known he did not intend to put Hutto on the stand, but upon the court stating, 'I want to know what he says about it,' plaintiff's counsel stated he would place Hutto on the stand.

On direct examination Hutto testified that he had received the air hose injury about which he had testified in the trial, at Corona, Alabama, in the latter part of 1948, or the first part of 1950. He was off five days, and 'I don't remember whether it was Mr. Cameron, O. K. Cameron, or Mr. Mauney, the superintendent, and he gave me a voucher for the days I was off.'

On cross examination Hutto denied he had told Mr. Crawford, when Crawford had interviewed him after the trial, that he had settled his claim for the air hose injury with Mr. Walton of the defendant's employment department. Hutto admitted he had told Crawford that he had gone to Dr. Cunningham, a company doctor in Corona, for treatment of his air hose injury, but stated that this was wrong, he had gone to Dr. Harrison who was not a company doctor for the defendant. Hutto did not know where Dr. Harrison was now.

At the time of his air hose injury claims under $150.00 were handled by the superintendent, and not by the Claim Department, and he had never told Walton or anybody that the Claim Department had handled his air hose injury. (During the trial Hutto had testified he had settled his air hose injury claim through defendant's claim department.)

Counsel for defendant then showed Hutto a transcript of his testimony in the trial.

At this point counsel for plaintiff objected to further cross examination of Hutto on the ground that defendant's counsel was not submitting new evidence, but was attempting to retry the case. Here the record shows the following:

'The Court: Eugene, (counsel for plaintiff) you realize the seriousness of this charge, I assume?

'Mr. Rutledge: Yes, sir, I most certainly do.

'The Court: I am interested in knowing the truth about it. There is no verdict going to stand before me if it is based on perjured testimony and I know it.

'Mr. Rutledge: Well, in the first place, Your Honor, it's our contention that this verdict is not based on Mr. Hutto.

'The Court: I think it's based to a large extent on his testimony.

'Mr. Rutledge: This is a proceeding for a motion for new trial, and not some proceeding because we have got some criminal charge in mind against Mr. Hutto, which I don't think we need.

'The Court: If he wants to get a lawyer to represent him at this stage, he can do it, and he might need one.

'Mr. Rutledge: Your Honor, just a minute. May we have a short recess, Your Honor? (Par. ours)

'The Court: Let me state this for the record: In my opinion, on the trial of the case, and it's my...

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