Southern Ry. Co. v. Bentley

• Decision Date: 07 June 1911
• Citation: 56 So. 249,1 Ala.App. 359
• Parties: SOUTHERN RY. CO. v. BENTLEY.
• Court: Alabama Court of Appeals

56 So. 249

1 Ala.App. 359

SOUTHERN RY. CO. v. BENTLEY.

Court of Appeals of Alabama

June 7, 1911

Rehearing Denied June 30, 1911.

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by John B. Bentley by his next friend against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Paul Speake, for appellant.

Callahan & Harris, for appellee.

PER CURIAM.

The plaintiff was a servant of the defendant company, and his duties were to unload slag from cars in its yards at Decatur to roll wheelbarrows, and do various things of that general nature. He had nothing to do with the operation or handling of engines or cars. According to the plaintiff's testimony, he and a number of fellow servants, similarly employed, were unloading a gondola car in a train consisting of three gondolas and three box cars. Before this work was completed, the switch engine came up, and started with the cars towards the switch, where the box cars were to be cut out and the gondolas switched back. Plaintiff was on the ground when the train started for the switch, and did not know where it was going; but, not being ordered to remain, he and his colaborers jumped on the cars, it being their custom to "go from one part of the yard to another on the switch engine and cars," and to "ride from one part of the work to another"; and, when so riding to assume any position anywhere they might select on any of the cars, with the knowledge and tacit permission of the defendant's foreman in charge of this particular work. Plaintiff got on a gondola car just in front of the three box cars. The sides of this car were about as high as a man's head, and plaintiff was standing on the outside of the car at a corner. He "had one foot on the end of the sill, and one on the outside step," when the protruding limb or limbs of a tree growing near the track dragged him off. In falling he caught by his hands, but was torn loose, and fell between the rails, where he was bruised and injured by the three box cars passing above him.

In explanation of the action of himself and his colaborers in getting on the cars on this occasion, plaintiff says: "We got on to ride down to the switch and back like some of the rest of them. We did not have work to do down at the switch. We always rode on the cars when they came up after the cars we were working on and moved them anywhere else; we always rode on the cars." And, further, "we were riding down for the box cars to be cut out, and the slag cars switched back. We were working on this car when they came to do the switching." There was other testimony both for plaintiff and defendant, but the foregoing is a fair statement of the plaintiff's case, as favorable to him as any phases of the evidence will permit of.

1. Seven grounds of demurrers were assigned to the complaint, all of which were properly overruled. Of the three insisted on in counsel's brief--the first, fifth, and seventh--it is sufficient to say that the first is fully refuted by an inspection of the complaint; and that the seventh in effect seeks to require the plaintiff to aver facts in negation of his own contributory negligence, which is of course unnecessary. C. & W. Ry. Co. v. Bradford, 86 Ala. 574, 6 So. 90, and cases cited; Broslin's Case, 114 Ala. 398, 21 So. 475.

The fifth depends upon the erroneous theory that a tree projecting over or against a railroad track so as to strike and injure employés riding on a train in the discharge of their duties, is not a part of the ways or works within the meaning of the statute.

It has been expressly held by the Supreme Court that a rock projecting from the side of a railroad cut far enough to endanger brakemen in the discharge of their duties, is a defect in the roadway. Ga. Pacific Ry. Co. v. Davis, 92 Ala. 300, 9 So. 252, 25 Am. St. Rep. 47. In principle there can be no difference between a rock and a tree. Each is a part of the soil, and permanent in its nature. On the other hand, it is well settled by our decisions that a movable object temporarily placed in dangerous proximity to a railroad track is not a defect in the track. K. C., M. & B. R. R. Co. v. Burton, 97 Ala. 240, 246, 12 So. 88. The opinion in that case discusses the subject quite fully, and applications of the principle may be found also in So. Ry. Co. v. Shook, 150 Ala. 361, 43 So. 579, and the cases therein cited.

Obviously, the way of a railroad is not merely its rails, but also such adjacent and superjacent space as may be requisite for the unimpeded operation of its rolling stock. And, if an obstruction be permanent in its nature, as opposed to that which is transient merely, if it be inherent in the way, as distinguished from that which is foreign and incidental only, it is clearly a part of the way within the meaning of subdivision 1 of section 3910 of the Code of 1907. Nor do we conceive that it would make any difference in the present case whether the tree was growing out of the soil of the right of way, or out of the adjacent soil. C. of G. Ry. Co. v. Alexander, Adm'r, 144 Ala. 257, 40 So. 424.

2. The record shows that the defendant pleaded in short by consent, first, not guilty; second, proximate contributory negligence on the part of plaintiff; and, third, plaintiff assumed the risks of injury from said limb. Upon these several issues the general affirmative charge was requested in favor of the defendant; and the refusal of the trial court to give this charge presents for our consideration the really vital questions in the case.

A servant who would recover against the master for injury resulting to him by reason of a defect in the ways, works, machinery, or plant connected with, or used in, the business of the master, must in his complaint aver, not only that he was in the service of the master, but also that, while in the discharge of his duties as such servant, he was injured by reason of such defect. So. Ry. Co. v. Guyton, 122 Ala. 240, 25 So. 34; S. S. & I. Co. v. Green, 159 Ala. 178, 49 So. 301.

And the averment must be supported by proof that at the time of the injury he was acting within the scope of his employment, or within the general line of his duty as related or as incidental to that employment. In determining what acts fall within these limits, in so far as the master's liability to the servant is concerned, courts have manifested a liberal regard for the just interests of the servant. It has been held by this court that the master must furnish the servant a safe way of ingress to, and egress from, his work, over the master's premises. Whatley v. Zenida Coal Co., 122 Ala. 129, 26 So. 124; Virginia Bridge Co. v. Jordan, 143 Ala. 610, 43 So. 73. And in B'ham Rolling Mill Co. v. Rockhold, 143 Ala 115, 127, 42 So. 96, 100, it was said: "While the mere act of getting water is not a part of the duties of the employé, yet it is a physical necessity which must be attended to while the employé is engaged in his duties, and he is entitled to the same protection in the interval when he leaves his work to get water as when he is actually working; and, whether the water is provided by the employer or by himself, the employé has a right to pass over the ways, provided by the employer, in going to and from the place where his thirst is slaked." So, in Southern Coal & Coke Co. v. Swinney, 149 Ala. 405, 42 So. 808, where a miner, leaving his work prematurely on account of sickness, loitered on the premises for ten minutes to explain his action to the superintendent, and was injured while so loitering, he was held to have been nevertheless still in the master's service. In Boss v. Northern Pacific R. R. Co., 5 Dak. 308, 40 N.W. 590, a section hand boarded a...