St. Louis-San Francisco Ry. Co. v. Carros

• Decision Date: 18 May 1922
• Docket Number: 6 Div. 639.
• Citation: 207 Ala. 535,93 So. 445
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. v. CARROS.
• Court: Alabama Supreme Court

93 So. 445

207 Ala. 535

ST. LOUIS-SAN FRANCISCO RY. CO. v. CARROS.

6 Div. 639.

Supreme Court of Alabama

May 18, 1922

Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.

Action for damages for personal injuries by Peter E. Carros against the St. Louis-San Francisco Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, for appellant.

Black &amp Harris, of Birmingham, for appellee.

SAYRE J.

Plaintiff (appellee) recovered judgment against defendant on account of personal injuries suffered by plaintiff while engaged in work he was employed by defendant to do in the state of Mississippi, as the complaint alleged. Defendant, appealing contends that on several grounds it was entitled to the general charge, requested and refused.

The Workmen's Compensation Act of this state (Gen. Acts 1919 p. 206), was approved August 23, 1919. Plaintiff was injured in the state of Mississippi October 27, 1920. Section 5b of the act provides: "When an accident occurs while the employee is employed elsewhere than in this state which would entitle him or his dependents to compensation had it happened in this state, the employee or his dependents shall be entitled to compensation under this act if the contract of employment was made in this state unless otherwise expressly provided by said contract, and such compensation shall be in lieu of any right of action and compensation for injury or death by the laws of any other state."

Of course, this rule operates in the courts of this state only. Evidence went to show without contradiction that at the time of his injury plaintiff was in the employment of defendant under a contract made in this state, and on this fact, for one thing, defendant bases its asserted right to the general charge. A sufficient answer to this contention is that there was no pleading to raise this question. L. & N. v. Trammell, 93 Ala. 350, 9 So. 870. The case of Steagall v. S. S. S. & I. Co., 205 Ala. 100, 87 So. 787, cited by appellant, was different. The injury involved in that case occurred in this state.

In the next place, it is insisted that there was no evidence tending to sustain the allegation of the complaint-count 7 alone being submitted to the jury-that defendant had "negligently failed to furnish the plaintiff with an appliance reasonably adequate and adapted to the end for which it was to be employed by the plaintiff in his said work"-a common-law action. Plaintiff was engaged in lifting a "petticoat pipe," weighing 125 to 150 pounds, to its place for attachment to the lower end of the smokestack of a locomotive engine. The chain used in the operation slipped from its point of engagement with the timber used in raising the pipe which rested on the timber whereby the pipe fell upon plaintiff, causing injury. Plaintiff, out of an ample experience in the work he was doing for defendant, testified, in effect, that the chain furnished to him was not a proper and suitable appliance; that a rope would have been safer and better. So far as concerns the question just here at hand, it means...