St. Louis & S.F.R. Co. v. Dorman
Decision Date | 20 January 1921 |
Docket Number | 6 Div. 936 |
Citation | 205 Ala. 609,89 So. 70 |
Parties | ST. LOUIS & S.F.R. CO. v. DORMAN. |
Court | Alabama Supreme Court |
Rehearing Denied April 21, 1921
Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.
Action by Mrs. Rhoda Dorman, as administratrix of the estate of George M. Dorman, for the damages for the death of said Dorman, against the St. Louis & San Francisco Railroad Company, the action being under the federal Employers' Liability Act. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.
Where it was merely conjectural whether death of a servant resulted from negligence for which the master was liable or from other cause, there can be no recovery.
The trial was had on count 2 of the complaint, which is as follows
The demurrers raised three points: (1) That the count stated no cause of action under the federal Employers' Liability Act; (2) that the complaint did not show that at the time of his death Dorman was engaged in interstate commerce; (3) that the complaint failed to show that at the time Dorman fell from the train he was performing duties under his employment in interstate commerce. These demurrers were overruled, and issue was joined on the plea of the general issue and assumption of risk.
The only witness who testified as to the facts of the case as related to the accident was the engineer, Lange, who was in charge of the train and who was called as a witness by the plaintiff. The following facts are without dispute: The intestate, Dorman, was the rear brakeman or flagman on one of defendant's freight trains between Birmingham, Ala., and Amory, Miss. This train left Birmingham before sunrise in the morning, and the last time Dorman was seen alive, so far as the record shows, was at East Thomas, just out of Birmingham. The train stopped at Palos, about 15 miles away after daylight, to take on water for the engine, and then proceeded to Jasper, where Dorman's absence from the train was first discovered. Palos is just west of the Little Warrior river, which is crossed by the railroad bridge, and Dorman's body was found at the foot of one of the piers of this bridge on the west side next to Palos, about 19 car lengths from the water tank, the water tank being 11 car lengths west of the bridge, and the bridge being about 18 or 19 car lengths in length. The train in question consisted of the engine, 28 loaded freight cars, and the caboose, upon which the duties of Dorman's employment required him to be, he having no duties which called him to any other part of the train. The average length of freight cars such as these is approximately 42 feet from coupler to coupler. With respect to his operation of the train, preliminary to his stop for water at the tank, the engineer, Lange, testified as follows:
In further explanation he said:
The testimony of other witnesses explains that the release of the brakes allows a recharging of the air in the train line in from two to four minutes, thereby making the brakes again available for use through application of the air.
Lange further testified:
Plaintiff examined four other witnesses, three of whom were locomotive engineers of experience, and the other a railroad employé upon hypothetical questions, which were designed to show that the air brake applications which Lange testified he made to his train and thereby brought his engine to a stop right at the tank would not have been effective to do so, and that with such applications his engine would have gone beyond the tank, and that at the tank would have required an emergency application, the result of which would have been a sudden jar to the caboose and other cars in the rear. This testimony is sufficiently discussed in the opinion of the court. The evidence showed that plaintiff was the surviving widow of her intestate, and that she was...
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