Taylor v. Atlantic Coast Line R. Co.

• Decision Date: 14 May 1936
• Docket Number: 4 Div. 850
• Citation: 168 So. 181,232 Ala. 378
• Parties: TAYLOR v. ATLANTIC COAST LINE R. CO.
• Court: Alabama Supreme Court

168 So. 181

232 Ala. 378

TAYLOR v. ATLANTIC COAST LINE R. CO.

4 Div. 850

Supreme Court of Alabama

May 14, 1936

Appeal from Circuit Court, Pike County; W.L. Parks, Judge.

Suit for damages by Herbert A. Taylor against the Atlantic Coast Line Railroad Company. From a judgment for defendant plaintiff appeals.

Affirmed.

Walters & Walters, of Troy, for appellant.

A.H Arrington, of Montgomery, for appellee.

BOULDIN Justice.

Action for personal injuries under the Federal Employers' Liability Act (45 U.S. C.A. §§ 51-59).

Plaintiff Herbert A. Taylor, was in the employ of defendant, Atlantic Coast Line Railroad Company, as a lineman in the maintenance of the telegraph and telephone service of the railway company. His employment was known and styled "telephone maintainer."

The complaint alleged, and evidence tended to show, that while engaged in this service, admittedly in interstate commerce, plaintiff climbed a telephone pole to replace defective or broken insulators, and while in this position, B.A. Tippins, who was assisting him at the time, threw up to him a glass insulator, which struck and injured plaintiff's right leg, dislocating the cartilage covering of the kneejoint. The injury is charged to the alleged negligence of Tippins.

One of the main issues of law and fact went to the question of Tippins' act being within the line and scope of his employment, an essential element in the liability of defendant under the doctrine of respondeat superior.

Taylor was at the time under the superintendence of J.R. Ivey, telephone supervisor, having authority and superintendence over the telephone system of defendant railway. Taylor's employment was on the division from Thomasville, Ga., to Montgomery, Ala.

Tippins' employment was that of "lamplighter," whose duties were to keep in order and duly functioning the signal lights from Dothan to Montgomery. He was under the superintendence of L.F. Brabham, roadmaster.

The employment of Taylor and that of Tippins called for work along the stretch of railroad between Dothan and Montgomery. Each was furnished separate means of transportation, but they frequently found it convenient to go together on the hand-car furnished Taylor. On such trips Tippins assisted Taylor in his work, including replacement of insulators, sometimes passing them up by line, and at others pitching them up as in the present instance.

This assistance had continued for several months. Plaintiff testifies that he had spoken to his superintendent, Ivey, also to Tippins' superintendent, Brabham, and both had consented for Tippins to so assist him. This was denied by these officers, who disclaimed any knowledge, consent, or direction touching such service.

In submitting this issue to the jury the court gave written charges 2, 4, and 7, at the instance of the defendant.

The giving of these charges is presented for review.

One criticism is leveled at the word "directed" in charge 2, also "authorized and directed" in charge 4, and "authorized or directed" in charge 7.

It is insisted these charges restricted the inquiry to an express direction by the superintending officer or officers, putting Tippins into this telephone maintenance service.

It is true that authorization may arise from consent, express or implied, to engage in another and different service as part of one's employment. Louisville & N.R. Co. v. Pettis, 206 Ala. 96, 89 So. 201; Republic Iron & Steel Co. v. Quinton, 194 Ala. 126, 69 So. 604; 39 C.J. p. 277 et seq., § 403, a and b.

Clearly in a case like this, Tippins and Taylor could by no arrangement as between themselves put Tippins into the telephone service, so as to render his employer liable for negligence in the performance of such service. If, as a volunteer, or at Taylor's request, he was merely helping Taylor as an accommodation, this would not extend the line and scope of his employment. Officers, informed of such situation, and consenting thereto, would not necessarily thus enlarge the scope of Tippins' employment. Stated differently, there must have been an authorization, express or implied, for Tippins to enlarge the scope of his employment, acting for his employer, not merely as a friend of Taylor in a voluntary service outside his department. As stated in the oral charge, there must have been an assignment to this further service, either expressly, or by implication from all the circumstances.

In the light of the evidence and the court's oral charge we are of opinion these charges were, at worst, only misleading, calling for an explanatory charge, if desired by plaintiff.

The "officers" mentioned in the charges, in the light of the evidence, could only have referred to the superintendent of the telephone service or...