Southern Ry. Co. v. Peters

• Decision Date: 20 May 1915
• Docket Number: 796
• Citation: 194 Ala. 94,69 So. 611
• Parties: SOUTHERN RY. CO. v. PETERS.
• Court: Alabama Supreme Court

69 So. 611

194 Ala. 94

SOUTHERN RY. CO. v. PETERS.

No. 796

Supreme Court of Alabama

May 20, 1915

On Rehearing, June 30, 1915

Appeal from Circuit Court, Jackson County; W.W. Harrison, Judge.

Action by Mit Peters against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded on rehearing.

The case was submitted to the jury on the following complaint:

"Plaintiff *** claims of defendant *** the sum of *** for damages for personal injuries in this: That on or about October 27, 1913, defendant, Southern Railway Company, a common carrier by railroad, was engaged in commerce between some of the states, and on said date plaintiff, Mit Peters while he was employed by such carrier in such commerce, and in the performance of his duties as such employé, received personal injury, resulting in whole or in part from a defect in the appliances or works or other equipment of defendant which defect was due to the negligence of defendant, its agents or employés in the manner following: Plaintiff was engaged in and employed in coaling engines at the coal chute of defendant near Stevenson, Jackson county, Ala., and in the course of his duties was required to and did roll loaded buggies or carts of coal on the floor or platform of defendant made for that purpose, and by reason of the negligence of defendant, its agents or employés, said floor or platform was rotten or defective, causing the wheels of said cart or buggy to break through said floor, resulting in injury to plaintiff, in that he was ruptured and injured internally, causing great pain, expenses of doctor bills inconvenience, and disabled to engage in his usual occupation, all to his damage as aforesaid. Said injury was the proximate result of the negligence of defendant, its agents or employés in maintaining said floor or platform in a rotten and defective condition."

The demurrers were that complaint stated no cause of action; that it is uncertain and indefinite in that it does not appear therefrom whether plaintiff is seeking to maintain the suit under the federal employer's liability statute, or under the state statute, and because the same is inconsistent and contradictory, in that it alleges that plaintiff was, at the time of his injury, employed by defendant in interstate commerce and in the performance of his duties as such employé, and sets out the circumstances under which plaintiff was injured, from which it appears that plaintiff was not, at the time of the alleged injuries, employed by defendant in interstate commerce and in the performance of his duties as such employé at the time of his injury.

Lawrence E. Brown, of Scottsboro, for appellant.

Bouldin & Wimberly, of Scottsboro, for appellee.

ANDERSON C.J.

The complaint in this case sufficiently sets up a cause of action under the federal Employers' Act. It sets forth every condition under which liability arises, and sets this forth substantially in the language of the statute. 35 Stat.L. 65 Fed. Statutes Annotated, Sup. 1909, p. 584. This is all that is required of the complaint. Grand Trunk R.R. v. Lindsay, 233 U.S. 42, 34 Sup.Ct. 581, 58 L.Ed. 838, Ann.Cas.1914C, 168; Seaboard Air Line R.R. v. Du Vall, 225 U.S. 477, 32 Sup.Ct. 790, 56 L.Ed. 1171; A.C.L.R.R. v. Jones, 9 Ala.App. 499, 63 So. 696. See, also, Id., 67 So. 632. The complaint was not subject to the defendant's demurrer.

The plaintiff worked at a coal chute, coaling engines on an interstate road. He said:

"It was the order and rules of the foreman to have the buggies ready when the engine came in. We had loaded up this buggy and was rolling it up to the tipple at that time."

It also appears that the next train expected was an interstate one between Alabama and Tennessee, and which was the one the plaintiff was preparing to accommodate when he was injured. It also appears that his duties required him to serve all trains, whether strictly local or running between states. The true test, in determining whether the injured servant comes within the purview of the federal statute, seems to be, Was the work in question a part of the interstate commerce in which the carrier is engaged? Supplying coal to an engine, by a servant employed to do so, where such engine is attached to, and used in pulling, interstate trains, is as essential to interstate commerce as is running or repairing the engine. Pedersen v. Delaware R.R., 229 U.S. 146, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann.Cas.1914C, 153; St. Louis & S.F.R.R. v. Seale, 229 U.S. 156, 33 Sup.Ct. 651, 57 L.Ed. 1129, Ann.Cas.1914C, 156. One engaged in delivering coal to a chute, to be later used in coaling both interstate and intrastate engines, is held to be engaged in interstate commerce. Barlow v. Lehigh Valley R.R., 158 A.D. 768, 143 N.Y.Supp. 1053. Pumping water for engines used in interstate commerce is within the act. Horton v. Oregon, Wash. R.R., 72 Wash. 503, 130 P. 897, 47 L.R.A.(N.S.) 8. See, also, North Carolina Co. v. Zachary, 232 U.S. 248, 34 Sup.Ct. 305, 58 L.Ed. 591, Ann.Cas.1914C, 159.

The defendant's special pleas setting up contributory negligence are in bar, not in mitigation, of damages, and the federal act permits such negligence to be considered only in mitigation of damages. Whether this should be specially pleaded in mitigation of damages or is available under the general issue we need not now determine, since said pleas are in bar and were therefore subject to the plaintiff's demurrer. If, as suggested by counsel for appellant, the pleas attempt to set up that the plaintiff's negligence was the sole cause of the injury, and that it was in no way produced through the negligence of the defendant, then they amount to a mere denial of the complaint, and the defense was available under the general issue.

We fully agree with counsel and with the holding of the United States Supreme Court, that the diminution of damages in case of plaintiff's contributory negligence should be in proportion to the...