Southern Ry. Co. v. Reeder

• Decision Date: 05 October 1967
• Docket Number: 6 Div. 334
• Citation: 204 So.2d 808,281 Ala. 458
• Parties: SOUTHERN RAILWAY COMPANY v. Johnny Ray REEDER.
• Court: Alabama Supreme Court

Page 808

204 So.2d 808

281 Ala. 458

SOUTHERN RAILWAY COMPANY v. Johnny Ray REEDER.

6 Div. 334.

Supreme Court of Alabama.

Oct. 5, 1967.

Rehearing Denied Dec. 21, 1967.

Cabaniss, Johnston, Gardner & Clark, Birmingham, for appellant.

Rives, Peterson, Pettus & Conway, Birmingham, for appellee.

LAWSON, Justice.

This is a suit instituted by Johnny Ray Reeder against Southern Railway Company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for injuries alleged to have been sustained by Reeder on September 23, 1961.

The case went to the jury on plaintiff's Count 1 and defendant's plea of the general issue in short by consent.

A verdict in the amount of $25,000 was returned by the jury in favor of the plaintiff and from the judgment rendered thereon and from the judgment overruling its motion for new trial the defendant brings this appeal.

The pertinent parts of plaintiff's Count 1 read as follows:

'* * * on to-wit, September 23, 1961 the defendant was a common carrier by railroad and as such common carrier was engaged in the business of operating a railroad for the transportation of freight in interstate commerce and in connection therewith the defendant operated a freight train between Sheffield, Alabama and Memphis, Tennessee, known as the Memphis Lay Over Local No. 63, and plaintiff avers that on said date plaintiff was employed by the defendant as a Railroad Brakeman and as such Railroad Brakeman was a member of train crew of the aforesaid Memphis Lay Over Local and plaintiff avers that a part of the duties of his said employment by the defendant was in the furtherance of such aforesaid interstate commerce or directly or closely and substantially affected such interstate commerce, and plaintiff avers that on said date when the aforesaid Memphis Lay Over Local was approaching he East Switch to the Passing Track of the defendant at Chewalla, Tennessee, he was directed by the Engineer of the train to get off of the engine and to run and throw the said East Switch so that the train could move from the Main Line Track of the defendant to the said Passing Track without stopping the train, and plaintiff avers that in obedience to the said directions of the Engineer of the train he got off of the engine and hurriedly went to and threw said East Switch and plaintiff avers that due to the hurried manner in which he was required to throw the switch he did not have sufficient time to get a secure footing and to place his body to throw the switch so as to avoid a twisting of his body and plaintiff was caused to throw the switch while in an awkward position and thereby suffered a catch in his right leg and pain in his back, * * *; and plaintiff avers that he was caused to suffer all his aforesaid injuries and damage as the proximate result, in whole or in part, of the negligence of the defendant in that the aforesaid Engineer of the defendant, while acting within the line and scope of his employment by the defendant negligently directed plaintiff to throw the aforesaid East Switch at the Passing Track of defendant at Chewalla, Tennessee, in a hurried manner which required the plaintiff to throw the switch while in an awkward position with resultant injury and damage to the plaintiff as aforesaid. * * *'

The defendant's Assignment of Error 1 reads: 'The Court charges the jury that if you believe the evidence you cannot find a verdict in favor of the plaintiff under Count 1 of the complaint.'

In cases brought under the Federal Employers' Liability Act this court is controlled by the decisions of the Supreme Court of the United States.--Louisville & N.R. Co. v. Cooke, 267 Ala. 424, 103 So.2d 791, and cases cited.

In regard to the question of submission to the jury of a case brought under the Federal Employers' Liability Act, the Supreme Court of the United States said in Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493, as follows:

'Under this statute (F.E.L.A.) the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. * * *

'The Congress when adopting the law was particularly concerned that the issues whether there was employer fault and whether that fault played any part in the injury or death of the employee should be decided by the jury whenever fair-minded men could reach these conclusions on the evidence.'

This court, in keeping with the decisions of the Supreme Court of the United States in cases brought under the Federal Employers' Liability Act, has held that the affirmative charge is properly given only where there is a complete absence of probative facts to support plaintiff's claim of negligence on the part of the railroad.--Louisville & N.R. Co. v. Steel, 257 Ala. 474, 59 So.2d 664; Atlantic Coast Line R. Co. v. McMoy, 261 Ala. 66, 73 So.2d 85; Atlanta & St. Andrews Bay Ry. Co. v. Burnett, 259 Ala. 688, 68 So.2d 726.

In reviewing the evidence where, as here, the affirmative charge was refused the appellant, we are, of course, guided by the oft-stated rule that the entire evidence must be viewed in its most favorable aspect to the appellee, and where this is done and a reasonable inference may be drawn adverse to the party requesting the affirmative charge, such a charge is properly refused.--Louisville & N.R. Co. v. Cooke, supra, and cases cited.

We hereafter summarize the tendencies of the evidence in the light most favorable to Reeder, the appellee.

On September 23, 1961, Reeder was employed as the head brakeman on the Memphis Lay Over Local, working from Sheffield, Alabama, to Memphis, Tennessee, handling local freight at various stops along the way. On that date the defendant's railroad had in force its Rule No. 1078, which required trainmen and brakemen while riding on the engine to obey the orders of the engineer.

At Chewalla, Tennessee, where Reeder suffered his injury, the main line is a single track and there is a passing or side track about one mile in length and straight.

The train, consisting of one locomotive pulling from sixteen to eighteen cars and a caboose, was to meet two first class trains and yield to them by getting off the main line and onto the passing track.

The engineer, the appellee, who was serving as head brakeman, and the fireman were riding in their customary places on the engine.

As the train, traveling six or seven miles per hour, approached to within sixty or sixty-five feet of the switch to the passing track, the engineer 'asked' or 'told' Reeder to...