Southern Railway Co. v. Fisher

SAYRE, J.

(1, 2) This action was brought by appellee under the federal Employers’ Liability Act. The argument against the seventh count of the complaint is that it failed to show that defendant owed any duty to plaintiff. Since every common carrier by railroad while engaging in commerce between the states is made by the statute liable in damages to any person suffering injury while he is employed by such carrier in such commerce for such injury resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, defendant was liable in the case stated by the count. — . Southern Railway v. Peters, 194 Ala. 94, 69 South. 611. Possibly the count leaves plaintiff’s case open to the inference that .he was guilty of contributory negligence, since, notwithstanding his duty to exercise reasonable care for his own safety, and notwithstanding it was his duty in general to direct the operations of the en *380 gine, he was at a place where the engine would strike him as, for. anything alleged to the contrary, he would have known had he exercised due care; but under the federal statute that fact does not bar a recovery, its only effect being to diminish the damages awarded by the jury in proportion to the amount of negligence attributable to the employee, with some provisos of no consequence here. There was no error in overruling the demurrer to this count.

(3-5)' Congress has not eliminated the defense of assumption of risk in cases like that presented by counts 5 and 7 upon which this case went to the jury. —Seaboard Air Line Ry. v. Horton, 233 U. S. 502, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1 Ann. Cas. 1915B, 475. Considering special pleas, 8 H, I, Z—1, and Z—2 with reference to the facts alleged rather than their labeling by defendant, they were not pleas of assumption of risk, or, if so intended by defendant, they were plainly defective. Plaintiff’s contract of employment did not involve him in any general assumption of risk from the negligence of coemployees, for, otherwise, the statute counted upon, and declaring, in effect, that an employee may recover on showing that one of the cooperating causes of his injury was a negligent act or omission of a co-employee, would be inoperative.—Louisville & Nashville v. Fleming, 194 Ala. 257, 69 South. 125. As pleas of contributory negligence, they were defective because pleaded in bar of the action rather than in mitigation of damages.

(6) There is no reversible error in allowing the plaintiff to testify that for many years he had been employed by defendant in the service he was performing at-the time of his injury, that his injury had disabled him to further perform such service, and that he was at the time of the trial unable to perform any service requiring the constant use of his injured foot. The testimony as to all these facts was material to be considered in ascertaining the effect of plaintiff’s injury upon his ability to earn a livelihood, in the employment for which he was fitted by long experience, and, it may be, some degree of disability in other lines, and were competently rendered by the witness; that is, none of them were objectionable as statements of mere conclusions. They were incapable of rendition in any other form.

(7, 8) The testimony of Woodin, a witness for plaintiff, was taken by deposition. He was close at hand and went to the place of the accident immediately after it happened. His testi *381 mony as to what he then and there heard Sparks, Malone, and Clem, members of the crew operating the engine by which plaintiff was injured, say concerning the manner of the accident, was allowed to go to the jury over defendant’s objection. However closely the statements may have followed upon the accident, they were merely narrative of a then past transaction, were hearsay, and should have been excluded. But the court is of opinion that the judgment should not be reversed on that account. Sparks, Malone', and Clem testified as witnesses for defendant. What Malone and Clem said to or in the hearing of Woodin after the accident was of no consequence. It did not tend to contradict their testimony at the trial, nor did it throw any light upon the questions in controversy between the parties and about which the result of the case turned, viz., whether Sparks, who stood upon the forward footboard of the tender as the engine “backed” through the yard and whose duty it was, according to tendencies of plaintiff’s evidence, to keep a lookout for employees, upon the track, was negligent in that respect, or whether, after he discovered plaintiff’s peril, he failed to exercise due care to have the engine stopped. They said only that they did not see plaintiff, meaning, very clearly, that they did not see him leaving or after he left a place of safety on the track adjacent to that upon which the engine was moving. What Sparks said was more material because it related to the immediate circumstances of plaintiff’s injury; but the judgment should not be reversed for the error in allowing Woodin to repeat it — this for the reason that it tended to support defendant’s denial of negligence on the part of Sparks, while, if on mature reflection it may be said to differ somewhat from Sparks’ testimony, the difference was so slight as hardly to amount to a contradiction. The evidence does not appear to have been offered to impeach Sparks, nor was it objected to on the ground that no predicate had been laid.—Southern Railway v. Smith, 177 Ala. 367, 58 South. 429.

We are not of opinion that the exceptions to parts of the court’s oral charge to the jury need to be treated seriatim. Those parts to which exceptions were reserved, read in connection with their context, do not appear to involve error.

(9-11) Plaintiff was conductor of the switch engine that ran against him. The crew, operated the engine about the yard under his direction, breaking up trains as they came in, and making up trains to be taken out. Whatever may be the duty in general *382 of such employees while going about their work in a railroad yard to look and listen before going upon or crossing a track, special charges requested by defendant on that subject were refused without error because they ignored plaintiff’s evidence going to show that he had directed the crew that the engine should not be moved until the Memphis special had passed through the yard. Defendant holds that plaintiff’s direction to the engine crew meant only that they should not take the engine out upon the main line. Suffice it to say that the jury may have found, very reasonably under-the evidence, that the direction was given and understood in accordance with plaintiff’s contention, in which event plaintiff had a right to assume that he would be obeyed, and so that he might go upon the track without taking additional precaution against the movement of the engine until the appointed time. Several of the charges requested by defendant predicated plaintiff’s duty to look and listen for the engine without regard to — that is, notwithstanding — the duty of the crew not to move the engine. They were therefore refused without error. The evidence to which we have referred above was enough to justify also the refusal of charges by which defendant requested the court to say to the jury that defendant’s employees, operating the engine at the moment, were under no duty to look out for plaintiff or give him warning of the engine’s approach by ringing the bell or otherwise. Plaintiff’s duties took him about the yard from one track to another, as the engine crew knew of course, and, if they would move the engine notwithstanding his direction to the contrary, it was clearly their duty to take precautions against the possible presence of plaintiff on the track over which they moved it. Besides, there was other evidence tending to show that it was the duty of the crew generally to look out for plaintiff, and that especially was this the duty of Sparks whose place on the forward footboard of the tender was one of peculiar advantage for that purpose. These tendencies of the evidence were ignored in the charges refused.

(12, 13) It seems likely that the court refused charge 17, requested by defendant, through inadvertence; or it may be that it was considered abstract, since there was no evidence to support a charge of negligence against the engineer Clem after the actual discovery of plaintiff’s danger, in which last event it would have been better to give the charge as requested, for a good deal was said in the testimony concerning Clem’s operation of *383 the engine and in a proper state of the evidence a finding of subsequent negligence on his part might have been referred to count 7 in which negligence was charged generally against “the agents or employees of the defendant engaged in operating said engine.” But, for whatever reason the court marked the charge “refused,” a reversal cannot be based upon its refusal, for the court very explicitly instructed the jury in its general charge that there could be no recovery for any subsequent negligence of Clem, and at. defendant’s request gave the affirmative charge in writing against count 1 which specifically charged Clem with negligence after he discovered plaintiff’s presence and peril at the place where he was injured, and upon the whole record it is quite clear that the case turned upon the charge of negligence preferred against Sparks. Thus it was that the jury was substantially and fairly instructed in a way to remove all apprehension that a verdict would be founded upon any alleged subsequent negligence of Clem. Section 5364 of the Code as amended by the Act of September 25, 1915 (Acts, p. 815).

(14) Other special charges refused to defendant need not be specially noticed, except to say that the general affirmative charge on .the whole case was properly refused. This charge proceeded upon the idea that plaintiff was not engaged in interstate commerce at the time of his injury. Defendant-was engaged in interstate traffic, and the -division of its road upon which plaintiff was employed extended from Chattanooga in Tennessee, through Georgia and Alabama, to Memphis, Tenn. Trains that came into the yard consisted of cars passing from one state to another, and, according to plaintiff’s testimony, he .was walking through the yard noting cars to be made up into trains for through traffic. On that day, Sunday, no local freights were handled. This testimony warranted the jury in finding that plaintiff was engaged in interstate commerce.

The damages awarded were ample; we cannot say they were excessive.

Affirmed.

Anderson, C. J., and McClellan and Gardner, JJ., concur.