Thomas Furnace Co. v. Carroll

• Decision Date: 05 February 1920
• Docket Number: 6 Div. 973
• Citation: 85 So. 455,204 Ala. 263
• Parties: THOMAS FURNACE CO. v. CARROLL.
• Court: Alabama Supreme Court

85 So. 455

204 Ala. 263

THOMAS FURNACE CO. v. CARROLL.

6 Div. 973

Supreme Court of Alabama

February 5, 1920

On Rehearing, May 20, 1920

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

Action by L.C. Carroll, as administrator of Sam Carroll, deceased against the Thomas Furnace Company for damages for death of intestate while in defendant's employ. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Stokely Scrivner & Dominick, of Birmingham, and Ben G. Perry, of Bessemer, for appellant.

Mathews & Mathews, of Bessemer, for appellee.

THOMAS J.

The suit is for personal injury under the Employers' Liability Act, Code, § 3910. The complaint avers the duties of employment of said intestate at and immediately preceding the time of his fatal injury as that of a "trip rider" or "chainer" on coal cars used in the conduct of defendant's business of mining coal.

The trial was had upon the first and seventh counts, based on the second subdivision of the statute (Choctaw Coal & Min Co. v. Dodd, 201 Ala. 622, 79 So. 54; Wilson v. Gulf States Steel Co., 194 Ala. 311, 69 So. 921); and on the third count, rested on the first subdivision.

Defendant pleaded the general issue and contributory negligence, and further set up in several pleas that plaintiff's intestate was guilty of proximately contributing to his injury, in that--

He was an employé of defendant as "a rapper and as such was charged with the duty of rapping or striking the signal wire leading from the engine into the mine, to signal the engineer when to pull the car out of the mine which was being used for the purpose of drawing water from the mine, and that the method of signaling in force at the defendant's mine at the time, if it was desired that the car should be drawn slowly, was to rap or strike the wire three times, and if there was no reason why the car should be drawn slowly, to rap or strike the signal wire one time; *** that plaintiff's intestate was riding on said car which was used for drawing water from the mouth of the mine, and that it was derailed, and plaintiff's intestate was thereby caused to sustain the injuries from which he died, and that plaintiff's intestate, before boarding said car for the purpose of riding out of the mine, rapped or struck the signal wire only one time, and that said car was, in response to said signal so given by plaintiff's intestate, being drawn at the usual rate of speed when such signal is given, and that running at such rate of speed when a human being is riding upon it is liable at any time to derail, and that in the exercise of ordinary care plaintiff's intestate should have signaled or rapped said signal wire three times, but he negligently failed so to do, or to otherwise notify defendant's engineer that he was on board said car, and as a proximate consequence, on account of the high rate of speed the car was being drawn from said mine, it was caused to derail and inflict upon plaintiff's intestate the injuries from which he died."

The Act of April 18, 1911, "To regulate the mining of coal in Alabama," stipulates that--

"No person, or persons, except those in charge of trips, superintendents, mine foremen, electricians, machinists and blacksmiths and others, when required by their duty shall ride on haulage trips, except a special trip of entry cars may be operated for the purpose of taking employés into and out of the mine, when the distance to and from their work exceeds one mile. No person, excepting trip riders, shall ride on loaded car or cars, and they shall ride only the front or rear end of the trip." Gen.Acts 1911, pp. 500, 534, § 98.

It should be said that the duties of trip riders or chainers are shown to be one and the same, namely, to fasten to the cable loaded cars or other cars to be carried out of the mine, and to signal the engineer when the same are so attached and ready for movement. Plaintiff's evidence showed that it was the duty of such trip rider to ride the loaded cars being carried out of the mine and in like manner to return them. This was permitted by the act of 1911 (Gen.Acts, 1911, p. 534, § 98).

The evidence tended to show that the speed of the car was regulated by "bell signals" or "a drop of the hand"; that a one-bell signal meant to take the cars to the top at such speed as the engineer thought proper; a two-bell signal indicated a fast movement of cars; and a three-bell signal, slow movement. A drop of the hand communicated by a person on the outside of the mine indicated that the cutting down of the speed and stoppage of the car was desired. A signal for a fast movement of the car was further indicated by witnesses as a "highball," which was communicated by the foreman without the mine to the engineer in charge within the mine by an indicated "wave of the hand"; and, when communicated to the engineer by the foreman from within the mine, was "two bells when the car is in motion."

If, at the time plaintiff's intestate met his death, he was riding one of defendant's cars in the discharge of his duty and had not otherwise proximately contributed to his injury so received, a recovery may be had; if at the time he was riding the car in violation of the statute or of a known rule or direction to him of defendant or its superior officer in charge, and such prohibited act and not the subsequent negligence of defendant's agents was the proximate cause of his injury, there could be no recovery. Gen.Acts 1911, pp. 500, 534, § 98; Reynolds v. Woodward Iron Co., 74 So. 360, 362; Seagle v. Stith Coal Co., 202 Ala. 3, 79 So. 301, 303. If it was the duty of the deceased to signal the engineer that he was going to ride the car and to pull it slowly, but instead he gave the signal which authorized that the car be propelled at a high rate of speed and to which the engineer responded in ignorance of intestate's presence on the car, and this was the proximate cause of the derailment of the car and of his injury, no recovery could be had. One may not recover for an injury which is the proximate result of his own negligence, unless the subsequent negligence of the master's other servant in charge had intervened between plaintiff's contributory negligence and the resulting injury for which recovery is sought. Kyker v. Hitt, 189 Ala. 652, 66 So. 632; L. & N.R.R. Co. v. Short, 197 Ala. 400, 73 So. 17.

Under such respective theories of the proximate cause of intestate's injury, there was conflict in the evidence. The testimony of plaintiff tended to show that his intestate, at the time of his injury, was "chaining" on the day shift and riding the trip, whether coal or water was being conveyed from the mine. In the language of one of the witnesses, the "chainer in the discharge of the duties of his employment had to ride the car to the top, when they wanted to change that water car, so the top crew would know what they wanted back." One of defendant's witnesses testified that he never heard of a trip rider or chainer having instructions to ride the cars, but that as a trip rider he would ride the trips in the discharge of his duties. Other witnesses for defendant denied such right or necessity of a trip rider to ride a water car. On this phase of the evidence--whether plaintiff's intestate was a trip rider and as such was at his place of duty and in the discharge thereof riding the car, of whatever nature, at the time of his injury--a jury question was presented.

The evidence for plaintiff tended to show that the engineer propelling the car on the trip in question was looking from where he was located straight ahead to the mouth of the mine, and there was no intervening obstruction to obscure his vision to the mine foreman or superintendent who was at the mouth of the mine. Such evidence was susceptible of the reasonable inference, as detailed by one of plaintiff's witnesses, that the superintendent or mine foreman gave a signal for a high rate of speed while the car was in motion, and, being drawn to the mouth of the mine, the engineer saw it, and in response, though running the car rapidly, he increased the movement of the car to a high rate, and that while so being propelled the wreck and resulting injury occurred, as the result of such increased speed over a defective track; it being out of alignment. L. & N.R.R. Co. v. Jenkins, 196 Ala. 136, 142, 72 So. 68.

The fact that said engineer testified that he got only one bell as a signal to direct the speed movement of the car during the trip in question and did not thereafter get a "highball" signal from the superintendent or foreman in charge, and that a car obstructed his view to the mouth of the mine where such official was stationed at the time, when considered with the other evidence in the case did not relieve, but only accentuated, the conflict in evidence as to the fact of such signal being given by that superintendent and that the motion of the car was increased in response thereto. The engineer's testimony that he could not tell who communicated the one-bell signal to him or from what line it came, other than that it came from the inside of the mine, was in its nature a further denial of the fact that he was so operating the car in response to the foreman's signal (that official being at the mouth of the mine), and that its movement was directed by a signal from one of the two chainers or rappers within the mine, in the discharge of the duties of his employment by defendant. The superintendent's or foreman's location at the mouth of the mine and his previous and immediate observation or knowledge of, or transit over the track and the place thereon where the accident occurred, are shown by the evidence to the effect that the superintendent or foreman had directly passed over said point in the track...