St. Louis & S.F.R. Co. v. Dorman

Decision Date20 January 1921
Docket Number6 Div. 936
Citation205 Ala. 609,89 So. 70
PartiesST. LOUIS & S.F.R. CO. v. DORMAN.
CourtAlabama 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 "Plaintiff, who sues as the administratrix of the Estate of George M. Dorman deceased, claims of the defendants $100,000 damages for that on, to wit, July 22, 1917 plaintiff's intestate, while in the employment of the defendant, St. Louis & San Francisco Railroad Company, a common carrier by railroad then and there engaged in carrying freight for hire between Birmingham, Ala. and Amory, Miss and while employed by said defendant in said commerce, was killed in the county of Jefferson, state of Alabama, as follows: Plaintiff's intestate, while a flagman on a train bound from Birmingham, Ala., to Amory, Miss., which train at said time was carrying freight for hire between said points in Mississippi and Alabama, was caused to fall from said train and was killed by said fall near Palos, Jefferson county, state of Alabama. Plaintiff avers that the death of her intestate resulted in whole or in part from the negligence of W.F. Lange, then and there an employee of the defendant, St. Louis & San Francisco Railroad Company, and while acting within the line and scope of his employment as such employee of said defendant, which negligence consisted in this: Said Lange so negligently stopped said train as to negligently cause intestate to be precipitated therefrom."

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:

"As I approached the trestle, I was going about 20 miles an hour. I made several application of the brakes to my train, as I made the stop at the tank at Palos. When I made the first application I was tipping over the hill from Coal Creek. The top of the Coal Creek hill is about a mile and a quarter from the trestle, about a mile from the south or east end of the trestle, it is down grade from the top of the hill to the trestle, and it is about level from the trestle to the water tank. I then made a service application. A service application is drawing the air out of the train line gradually. I did it to steady my train. It would have gotten too great speed if I hadn't done it going down the grade. I applied the brakes at the trestle, service application of the air. I applied 10 pounds then, and didn't make any more application. I made one as I came over the top of the hill, and I made another of 10 pounds when I got to the trestle. It stopped me at the water tank. I did not go beyond the water tank. After I stopped at the water tank I took water. I did not see anything that was wrong. I stopped right at the water tank, and didn't have to move the engine after I stopped. I turned my water right on then. I hit right at the spot."

In further explanation he said:

"On the engine that I was operating on this occasion I had 70 and 90 pounds of air available for use on the air brake. That means 70 pounds in the train line and 90 pounds in the main auxiliary. There is a connection between the air in the train line and the air in the main reservoir. The main reservoir is on the engine and is an extra supply--excess pressure of the air; it is in case you want to use your air. There are 90 pounds of air stowed away in the reservoir on the engine to recharge your train line after you use your air, after you use some of the air out of your train line. The air in the train line is used to operate the automatic brakes. In making the stop for the Palos water tank on this occasion there were two different brakes used. I made two applications of the brakes in making the stop. I tipped over Coal Creek hill about
30 miles an hour. Coal Creek is about 2 1/2 miles from Palos. I was going pretty lively and the road was crooked, and there was a yard limit at Palos which I had to approach under control; so, after tipping over the hill, I made a reduction of about 10 pounds in order to steady my train. By the time I passed through Bessie [a junction point on the railroad about 1 1/2 miles from the south end of Palos bridge] I had my train down to about 20 miles an hour. I released my brakes and I held my train with the driver brake on the engine. I have got a feature on the locomotive that will release the brakes on the train and hold the brakes on the engine and tank; and I left the driver brakes set until I got to Palos. That means that I just almost held my speed of 20 miles an hour from Bessie, which is down hill, to Palos, then when I got on to the bridge I made another reduction of the train line. In the meantime my train line was recharged again to seventy pounds. I released my brakes when I first tipped over the hill. My train line was recharged again."

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:

"I had 70 pounds in my train line again and still steadying my train with the driver brake and that bunched my train. The cars were all bunched when I tipped over the hill when I made the first application. By my train being bunched I mean that there is a certain amount of slack in the cars, the springs; some of them are weaker and some of them are stouter, and there is a certain amount of slack in the train, and it has got to be there or else you couldn't keep these trains together. The effect of bunching the train is that it will make one car bump up against the other. My train was bunched about half a mile before I got to the south end or the Birmingham end of the Palos bridge on the occasion that I made this stop. I made an automatic application of the air of 10 pounds. That is called a service application. After making that service application I did not make any other application to stop at the water tank. After making the service application of 10 pounds of air, it is not possible to make an emergency stop. You cannot make an emergency stop after you have weakened your train line. You have got to have 70 pounds in the train line in order to make an emergency application; otherwise you cannot make an emergency application from a service application. After you have made a service application you have to recharge your train line before you can make an emergency stop. I made my service application that I spoke of when my train reached the trestle; that is, when the engine reached the trestle."

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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