Western Ry. of Alabama v. Mays

• Decision Date: 30 June 1916
• Docket Number: 3 Div. 235
• Citation: 197 Ala. 367,72 So. 641
• Parties: WESTERN RY. OF ALABAMA v. MAYS.
• Court: Alabama Supreme Court

72 So. 641

197 Ala. 367

WESTERN RY. OF ALABAMA v. MAYS.

3 Div. 235

Supreme Court of Alabama

June 30, 1916

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Action by Tom Mays against the Western Railway of Alabama, for injuries received while in its employment. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Act of April 18, 1911. Affirmed.

The fifth count states the relation as that of employer and employé, that the train on which plaintiff was an employé was engaged in interstate commerce between the states of Alabama and Georgia, and that, while engaged in its employment in such commerce, and while removing, or assisting to remove, a barrel of oil from a railroad car upon a railroad track at or near Burkville in Lowndes county, Ala., said barrel of oil struck or ran upon plaintiff, and by reason thereof and as a proximate result plaintiff was injured. Practically the same allegations were made in the seventh court. The allegation of negligence sufficiently appears form the opinion, as do the other facts.

The following charges were refused to defendant:

(16) If you believe from the evidence in this case that plaintiff was warned before undertaking to unload the barrel of oil and there was danger of his not being able to do so and that he was requested to wait until help could be gotten to assist him, but that notwithstanding the request, he voluntarily undertook to assist in unloading the same before further assistance could be gotten, and his so doing proximately caused the injury complained of, then defendant was not liable to him, and your verdict should be for defendant.

(17) Plaintiff was not bound to obey or conform to any order given him if he knew that obeying them would probably cause damage to him; and, if you believe from the evidence that he undertook to assist in unloading a barrel of oil upon being told so to do, when he knew that injury would probably result to him in so doing, and as a proximate result of his undertaking did receive the injuries complained of, then I charge you that defendant is not liable to him, and your verdict should be for defendant.

(19) If you believe from the evidence that the plaintiff before undertaking to unload the barrel of oil, was warned that possibly he might not be able to do so, and that he had better wait until assistance could be gotten, notwithstanding the same he voluntarily undertook to assist in unloading the barrel of oil, and that as a proximate consequence thereof it fell on him and injured him as complained of, then I charge you that your verdict should be for defendant.

Steiner Crum & Weil, of Montgomery, for appellant.

W.E Andrews and Hill, Hill, Whiting & Stern, all of Montgomery, for appellee.

THOMAS J.

This action is by Tom Mays, appellee, against the Western Railway of Alabama, appellant, for personal injuries sustained by plaintiff, as a brakeman of the defendant, while unloading a barrel of oil from one of defendant's cars. The case was submitted on counts 5 and 7, which counts are sufficient under the federal Employer's Liability Act. The allegation of negligence in count 5, following the recital of the circumstances of the injury complained of, was that:

"One Williamson, an officer, agent or employé of said defendant, while acting within the line or scope of his employment *** negligently pushed or shoved said barrel of oil from said railroad car, upon or against plaintiff as aforesaid."

The like allegation in count 7 is that:

"Said Williamson, *** while removing said barrel of oil from said railroad car, negligently suffered or permitted said barrel of oil to strike or run upon or against plaintiff."

That negligence may be averred in a very general way, and that the quo modo of the negligence need not be defined, is settled by this court. T.C., I & R.R. Co. v. Smith, 171 Ala. 251, 55 So. 170; B.R., L. & P. Co. v. Selhorst, 165 Ala. 475, 51 So. 568; So. Ry. Co. v. Crawford, 164 Ala. 178, 51 So. 340; L. & N.R.R. Co. v. Marbury, 125 Ala. 237, 28 So. 438, 50 L.R.A. 620; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 So. 349; L. & N.R.R. Co. v. Church, 155 Ala. 329, 46 So. 457, 130 Am.St.Rep. 29; T.C., I. & R.R. Co. v. Moore, 69 So. 540.

In Wes. Ry. of Ala. v. Foshee, 183 Ala. 182, 62 So. 500, it was held that an averment that the defendant was guilty of negligence in and about carrying plaintiff as its passenger, in connection with a statement of the relation between the parties, was sufficient.

The count in Woodward I. Co. v. Marbut, 183 Ala. 310, 62 So. 804, concludes with the averment that "said injury and damage were caused by reason and as a proximate proximate consequence of the negligence of a person in the service and employment of defendant, and intrusted by it with superintendence, whilst in the exercise of such superintendence, to wit, Tom Cosper," and the failure to point out even in general terms any act of negligence on the part of the alleged superintendent, with respect to his duties while so engaged, was held a ground for demurrer. Here, the fifth count avers the negligence of Williamson, the agent of defendant, while acting in the line and scope of his employment, in that he "negligently pushed or shoved said barrel of oil from said railroad car upon or against plaintiff as aforesaid." This was sufficient. T.C., I. & R.R. Co. v. Moore, supra.

The court did not err in overruling defendant's demurrer to counts 5 and 7.

The third, fourth, and fifth assignments of error are based on the refusal of defendant's request for the affirmative charges. It is only where there is no evidence tending to establish the cause of action as averred that the court may direct a verdict, it having no power to judge of the sufficiency of the evidence, nor of which of conflicting tendencies of evidence should be adopted. Amerson v. Corona C. & I. Co., 69 So. 601; Tobler v. Pioneer M. & M. Co., 166 Ala. 517, 52 So. 86; A.C.L.R. Co. v. Jones, 9 Ala.App. 499, 63 So. 693.

The testimony of defendant's agent, Williamson, on whose negligence the two counts are based, was to the effect that:

"He was a freight conductor on July 30, 1914, and remembered the accident at Burkville, and plaintiff had been working for him four or five days. Witness had been working about ten years handling freight; that when they got to Burkville he told the negroes that there was a barrel of oil to unload; that witness knew the barrel was heavy and weighed a little over 400 pounds; that plaintiff had only been working four or five days, and he was a little afraid of him, afraid he could not manage it, and asked Tom, the plaintiff, if he thought he could lift it, and plaintiff said yes; that they opened the door, and he told Tom, the plaintiff, it was pretty heavy, but if he thought it was too heavy, witness would get some help, but plaintiff said, 'No; I can handle it all right;' that he rolled the barrel to the door, and the two negroes were on the ground, and he called to some boy on the platform to come and help. Witness rolled the barrel to the door and balanced it up against the door, but did not push the barrel out, and he did not have much confidence in Tom, and was afraid he couldn't handle it," etc.

The witness, Dan Hill testified that:

"When the plaintiff got the oil to the door and got it balanced in the door, and ready to take it out, the conductor said, 'You cannot look it out, you've got to take it out.' At that time,

plaintiff jumped down, on the ground, and he and the other negro got hold of the barrel by the end, and the barrel was already just about balanced, and the conductor sort of pushed the other end of the barrel, and the two negroes started to lift it down, and it looked like it was too much weight, and just about that time they got it started down good, the plaintiff began to tremble in his knees, and it went down on him, and broke his leg."

This testimony was corroborated by that of Green Daniels. Plaintiff's statement of the facts on this point was:

"That when he was hurt his conductor was Mr. Williams, and that he was supposed to obey his orders, as he was his superintendent and boss. That when they got to Burkville, Mr. Williams told him they had a barrel of oil, and for him and the other negro to break the seal of the car. That this was done. That they shoved the door open, and Mr. Williams got up in the car. That plaintiff also got up in the car and rolled the barrel to the door, and twisted it around and balanced it in the middle, and Mr. Williams said, 'How are you going to roll it out?' I said, 'I don't know;' he says, 'You can't look it out; G____ d____ it; get down and help take it out;' and he, plaintiff, jumped on the ground, and he and the other negro got hold of the barrel. That at that time, Mr. Young was standing

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