Southern Ry. Co. v. Chestnutt, 6 Div. 896.

• Court: Supreme Court of Alabama
• Writing for the Court: BOULDIN, J.
• Citation: 210 Ala. 282,97 So. 905
• Parties: SOUTHERN RY. CO. v. CHESTNUTT.
• Docket Number: 6 Div. 896.
• Decision Date: 08 November 1923

97 So. 905

210 Ala. 282

SOUTHERN RY. CO.
v.
CHESTNUTT.

6 Div. 896.

Supreme Court of Alabama

November 8, 1923

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action for damages by A. C. Chestnutt against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. [97 So. 906]

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

Black, Harris & Foster, of Birmingham, for appellee.

BOULDIN, J.

This is a suit to recover damages under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).

The complaint, after stating the facts required to bring the case within this form of action, avers, in substance, that the "pin" which held a curtain on the cab of an engine, was, by reason of negligence, etc., "insufficient or defective," and as a proximate consequence thereof the plaintiff, while pulling down the curtain, was caused to fall and receive the alleged injuries. The pleas were in short by consent.

The main question here presented is the refusal of the general affirmative charge for defendant.

Appellant insists that, under the undisputed evidence, plaintiff was using the pin alleged to be defective for a purpose different from that for which it was furnished and intended, and that his injuries resulted from such unauthorized use. A study of the evidence, and proper inferences therefrom, discloses the following:

Defendant's switch engine was equipped with a side curtain, made of cloth or canvass, to close the gangway or opening between the engine and tender against driving rain. The curtain, in place, was some 2 to 3 feet in horizontal width, and 5 to 6 feet in vertical length. One side of the curtain was made fast to the outside or back wall of the cab. The other side was attached to a round wooden pole about 1 1/2 inches in diameter. In the top end of this pole was fixed a U hook, or staple. When not in use the curtain was rolled on the pole and hung by the U hook on the pin protruding from the back wall of the cab.

This pin consisted of a five-eighths inch steel or iron bolt, 5 or 6 inches in length, threaded at one end and with nuthead on the other. The threaded end passed through the cab wall, and the bolt was made fast by nuts wrenched up against the cab wall inside and out. This bolt extended 2 1/2 or 3 inches outside to receive the U hook. The sole purpose of this pin was to support the curtain roll, and hold it in place so as not to obstruct the gangway.

To use the curtain, when needed, it was required, ordinarily, for plaintiff fireman, standing in the gangway, to merely lift the curtain roll so that the U hook would clear the pinhead, then unroll the curtain, and attach the pole to the tender. This could be done without taking hold of the pin.

Plaintiff's testimony touching the accident tended to show:

The engine was standing still. It was night. A rain came, beat into the cab, and called for the placing of the curtain. Plaintiff undertook to loose the curtain in the ordinary way, but could not. Thereupon plaintiff climbed to a higher position by placing his left foot on the decking of the cab, or on a projection outside the cab wall, and his right foot or knee on the tender. The tender was 2 to 3 feet higher than the decking. Thus standing, plaintiff was astride the gangway 2 to 3 feet wide.

Plaintiff here discovered that the pin was bent upward. Leaning forward, he took the pin and U hook in his left hand and the curtain with his right hand to pull up the "slack" in the curtain, and by this means detach the U hook from the pin. Presently the pin...