Southern Ry. Co. v. Melton

• Citation: 198 So. 588,240 Ala. 244
• Decision Date: 24 October 1940
• Docket Number: 6 Div. 555.
• Parties: SOUTHERN RY. CO. v. MELTON.
• Court: Alabama Supreme Court

198 So. 588

240 Ala. 244

SOUTHERN RY. CO. v. MELTON.

6 Div. 555.

Supreme Court of Alabama

October 24, 1940

Rehearing Denied Nov. 22, 1940.

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action under Federal Employer's Liability Act, 45 U.S.C.A. § 51 et seq., by Mrs. W. C. Melton, as administratrix of the estate of W. C. Melton, deceased, against the Southern Railway Company, for wrongful death of intestate. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Smith Windham, Jackson & Rives, of Birmingham, for appellee.

FOSTER Justice.

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for the death of W. C. Melton. It was tried on count No. 1.

The first question here presented relates to the sufficiency of that count tested by demurrer on the ground that it does not sufficiently show that decedent was engaged in service for defendant in interstate commerce. The insistence is that it shows that he was then so employed, but not then so engaged in such nature of employment.

As amended, the count contains the following allegations in that connection: "Said Melton was an employee of the defendant and as such employee of the defendant, and while acting within the line and scope of his employment by the defendant, was engaged in working in and about defendant's track and the signal system connected therewith, at said point on said track approximately forty-one hundred feet east or northeast of the corporate limits of Athens, Tennessee, in checking and inspecting the signal system or the switch or switches on said track, which plaintiff avers was the track used by the defendant in the transportation of interstate commerce, and the plaintiff further avers that the said inspection and checking of said signal system or switch or switches on the defendant's said track were in furtherance of interstate commerce in that said signal system and switch and switches were for the use, regulation and safety of interstate traffic and interstate commerce."

The principle for which appellant contends is well supported,--St. Louis & S. F. R. R. Co. v. Dorman, 205 Ala. 609, 89 So. 70; Adams v. Southern Ry. Co., 166 Ala. 449, 51 So. 987,--but we think the allegations of the count as amended sufficiently comply with the requirement.

Assignment of error No. 6: Refusal of the affirmative charge.

The defendant requested the affirmative charge which is argued in two aspects: (1) that the evidence failed to show that deceased at the time of his injuries was employed in interstate commerce and so acting, and was then and there engaged in the performance of such character of service; and (2) that the evidence failed to show that the injuries received by him were proximately caused by negligence on the part of defendant.

We will state the tendencies of such features of the evidence necessary to a consideration of each contention. The evidence relating to each being separately stated, and much abbreviated, and for the purpose of determining its sufficiency to present a jury question. The question now to be considered is whether deceased was at the time of his injuries actually engaged in service for defendant in interstate commerce. Of course servicing the signals and switches on the track used in interstate commerce is such service. The track was so used.

Near the Duggan Farm crossing there was a spring switch west of it and two signals east of it, and one circuit controller connected to the spring switch. The spring switches were to be inspected once each week, and the circuit controllers twice a month and all signals at least once each month. There was a circuit controller with each spring switch and there were others not so connected. But when a spring switch was inspected, the circuit controller so connected was also due to be inspected. To inspect the spring switch to see whether it is closing properly a ball peen hammer and watch would suffice. But to inspect it and the circuit controller at the same time, or the circuit controllers separately, he should have an oil can and oil, a big wrench and one or two others, and a screw driver. The servicing could not be done with a ball peen hammer only.

Decedent was the inspector and he had with him his assistant, one Highsmith, and the section foreman Thomas, and had no other tools than a ball peen hammer. Those three men often worked together. He wore his work clothes. He could go to this crossing to make the inspection in his automobile. But in doing so, it would not be convenient to inspect other switches or signal controllers. He was furnished with a railroad motorcar in which to travel along the railroad with tools in it to do this service; but was not prohibited to use his automobile when convenient, though advised not to do so. On this occasion he had a cold, and his automobile afforded better protection than an open railroad motorcar. He lived at Athens, Tennessee, less than a mile west of the Duggan crossing. He customarily drove to the station in his automobile, parked it, and took out his railroad car to use for inspection.

On the morning of the accident, about 7 o'clock, Melton, Highsmith and Thomas went into a hardware store at Athens and purchased pistol cartridges. After the accident three pistols were taken out of the car. At about 9:30 that morning they were in Niota, about four miles east of Duggan Farm crossing, with Melton driving the car, and he drove off towards Athens. They were all killed at this crossing at 9:50, by a train known as "2nd-17", that is, a second section of No. 17 from Knoxville to Chattanooga, running two hours and fifty minutes later than its regular schedule. Melton owned the car and was driving it when last seen, and presumably at the time of the accident. The day was Friday, December 24, 1937, but not a holiday for these men. Melton was supposed to be on duty Monday through Friday of each week. He was not due to report to anyone for duty, but made a report each night of that day's work in detail. He had no specified or customary system for doing each day's work.

On or before leaving the Athens station when he went on an inspection, he was required to get a line-up of the trains to pass his territory that day, and have an official time table, look out for and keep clear of trains, and not stop them by his inspections affecting the signals. That morning he did obtain that line-up and had it with him.

The Duggan Farm road terminated for practical purposes at the Duggan Farm houses. It principally served that farm, but was for the use of the public, whether a public road or not. In crossing the railroad at that place, there was no where specially to go, except to the Duggan Farm with which none of the automobile occupants had any connection. They are not shown to have had any business there or purpose in going. So that it was a day when deceased was supposed to be on duty, at a place where he could be so engaged, though without all the customary tools to do the whole job, was traveling in an unusual way when on duty, though not prohibited, and when there appears no other reason for his being there. The signal at the crossing had last been inspected on December 17th, just a week before that day, and the circuit controller and spring switch on December 16th. There was no signal failure reported to have existed at that place and time. If he was making an inspection it was routine.

We have not undertaken to set out all the evidence which tends to show that he was not engaged in the performance of service in inspecting the signals and switches admittedly used in interstate commerce. We need not weigh the effect of any of the evidence except to determine if there is substantial evidence, more than a scintilla, to sustain a finding that he was so engaged. The scintilla rule of evidence, ordinarily applicable in Alabama practice, does not apply under the Federal Employers' Liability Act. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Western & Atlantic R. Co. v. Hughes, 278 U.S. 496, 49 S.Ct. 231, 73 L.Ed. 473; Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041; L. & N. R. R. Co. v. Grizzard, 238 Ala. 49, 189 So. 203; Southern Ry. Co. v. Glenn, 228 Ala. 563, 154 So. 792; Birmingham Belt R. Co. v. Bennett, 226 Ala. 185, 146 So. 265; Illinois Cent. R. Co. v. Johnston, 205 Ala. 1, 87 So. 866.

Much argument is made for appellant that the circumstances show only a possibility of his being engaged in his duties, and when considered in the light of other circumstances do not present a situation from which such an inference is fairly to be deduced by a reasonable jury. We are not now concerned with the weight of the evidence, except as it bears on one question.

We think from the evidence the situation is more than one where the purpose of decedent and his companions is not deducible from the circumstances with any degree of satisfactory result. He was at a place at a time when it was his duty to make an inspection. The spring switches were at sidings not infrequently near a station and public road to which he could go by automobile. This was probably not a public road, but one available to him, and no plausible reason is advanced for his being there for another purpose; and at a place where he probably would not go without some special reason. That there are circumstances which tend strongly to show that he probably would not have thus made an inspection only furnish occasion for a verdict of the jury, thereby making the question one properly submitted to them. We do not think there was error in that aspect of the contention.

The second...