74 So. 960 | Ala. | 1917
The' complaint originally contained seven counts. Plaintiff withdrew all but counts Nos. 6 and 7, which stated a cause of action under the federal Employers’ Liability Act. To each the defendant pleaded the general issue.
The gist of these counts is that the defendant was engaged in interstate commerce, and at the time of plaintiff’s injury was improving its main track, rendering it more safe or permanent by ditching and excavating along it, in Blount county, Ala.; that this work was done by means of a “ditching outfit,” which was mounted on a set of tracks on a flat car, and on which track a diminutive steam engine was propelled back and forth; that one Durbin was in charge of this ditching engine; that plaintiff, while acting within the line and scope of his duties as an employee of defendant, was injured by reason of the negligence of said Durbin — count 6 alleging the negligent act to have been the causing of the crane which was attached to the “ditcher” to swing around against a telegraph pole, thereby throwing plaintiff upon the track on said flat car, where he was injured; and count 7 alleging that Durbin negligently conducted himself in and about the management or operation of the-ditching engine, thereby causing plaintiff to be thrown down to and upon the track of said flat car, and his foot to be mashed and bruised by said ditching engine; that is, the distinguishing features of these counts are that count 6 attributes plaintiff’s injury to the negligence of Durbin in causing the crane to come in contact with a telegraph pole, and count 7 attributes said injury to the negligence of Durbin in the control or operation of the ditching engine, in that thereby plaintiff was thrown on the track and injured by the ditching engine as alleged.
■ Plaintiff’s evidence tended to show that he was injured while discharging the duties of a fireman, and that the general character of the work being prosecuted by defendant and its said agents (including plaintiff) at that point on the main line was cleaning out its ditches, taking out a “slide” toward and along
Plaintiff’s account of his duties was thus detailed by him: “It was the main line of the track where we were working. The passenger and freight trains run over it, including through passenger trains and through freight trains. * * * I was injured about 11 o’clock, between 10 and 11, somewhere along there, in the daytime. My duty on the ditcher was to fire to dig two carloads of dirt, then the other fellow, the pitman, he fired to dig two carloads.
“I was firing just before I was injured. Just before I was injured Durbin gave the signal, two blows for water, and that meant to get ready to take water into the tank of the ditcher from the tank connected with the locomotive engine. When the signal was given it was my duty to get ready to take water. Mr. Durbin instructed me in that duty. To get water I had to climb up and put a hose in the tank of the locomotive. The locomotive was on the track opposite to the ditcher. To take water we had' to get the car over where the locomotive engine could get to the side of the ditcher.
“The ditcher was in place, and they went down to pull the locomotive in place, but it had not got in place, but was coming in place. I climbed up on the corner of the flat car of the ditcher. It was necessary to get-up there. When I got there I stood just on the corner of the ditcher. The ends stuck out about 21/2 inches, and I was standing on that. The car I was on was standing still. The ditcher at that time was moving around. When I got on the place where I was standing the crane on the ditcher was swinging around and hit a telephone pole, and jarred me down. * * *
“When the crane struck the telegraph pole it knocked me down on the track, and then the ditcher engine run back over
A party will not be permitted to experiment, in interrogating a witness, by calling out a certain answer and then (the answer proving unfavorable) having it excluded on motion. No error was committed in overruling defendant’s motion to exclude this answer.—E. T., V. & G. R. Co. v. Turvaville, 97 Ala. 122, 12 South. 63; Amer. Oak Ex. Co. v. Ryan, 112 Ala. 336, 20 South. 644; Farrow v. N. C. & St. L. Ry., 109 Ala. 448, 20 South. 303; Hunnicutt v. Higginbotham, 138 Ala. 472, 35 South. 469, 100 Am. St. Rep. 45. A part of the answer was clearly responsive, and it may be that the whole answer was responsive to defendant’s question. It was not the duty of the court, on a general motion to exclude the whole answer, to separate the responsive and competent testimony from that which was not responsive and was illegal.—Ray v. State, 126 Ala. 9, 28 South. 634; Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St. Rep. 22; Ala. Mid. R. Co. v. Darby, 119 Ala. 531, 24 South. 713; Davis v. State, 131 Ala. 10, 31 South. 569; Rarden v. Cunningham, 136 Ala. 263, 34 South. 26; Weaver v. State, 139 Ala. 130, 36 South. 717.
Defendant requested several written charges that raised the question whether there was proof that at the time of the alleged injury both appellant and appellee were engaged in an act of interstate commerce, or assisting therein, within the meaning of the federal statutes. The true test was declared in Western Railway of Alabama v. Mays, 197 Ala. 367, 72 South. 641, 643, to be whether the work or act in question was “a part of the interstate commerce in which the carrier was engaged;” likewise (stated in different terms) in Louisville & Nashville Railroad Co. v. Carter, 195 Ala. 382, 385, 70 South. 655, 657, where it is said that the relation exists “not only when the injured
A track over which interstate commerce is being moved, or is to be moved, in the usual course of the carrier’s business, is an instrumentality of such commerce; and an employee of an interstate carrier who is engaged, when injured, in a service “immediately productive of the maintenance or repair of intimately connected and essential, indispensable features of interstate commerce,” is within, and his rights are protected and governed by, the federal statute.—Ex parte Atlantic Coast Line Ry. Co., 190 Ala. 132, 67 South. 256; L. & N. R. R. Co. v. Carter, supra; Western Railway of Ala. v. Mays, supra; Mondou v. N. Y., N. H. & H. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Pederson v. D., L. & W. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; N. C. R. R. Co. v. Zachery, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. l914C, 159; Ill. Cent. R. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163; Ruck v. C., M. & St. P. Ry. Co., 153 Wis. 158, 140 N. W. 1074.
The statute has been applied to trainmen. It has been applied to an employee working at a coal chute, coaling engines, on a railroad engaged in interstate traffic, though he was also required to serve engines engaged in intrastate service (Southern Railway Co. v. Peters, 194 Ala. 94, 69 South. 611); to a brakeman unloading a barrel of oil shipped from Ohio to a point within this state (Western Railway of Ala. v. Mays, supra); to an engineer hauling coal for use in interstate transportation (Barlow v. Lehigh Valley Ry., 158 App. Div. 768, 143 N. Y. Supp. 1053); to one pumping water for engines in such service (Horton v. Oregon, Washington R. & Nav. Co., 72 Wash. 503, 130 Pac. 897, 47 L. R. A. [N. S.] 8); to a clerk crossing the tracks in the yards to meet an incoming interstate train, and whose duty it was to take the numbers, the seals, and the labels of cars, some of which were engaged in intrastate traffic (St. L., San F. & T. Ry. Co. v. Seale, 229 U. S. 156, 161, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156). In the last-mentioned case the court said: “The train from Oklahoma was not only an
A foreman was held to be protected by the statute when injured while keeping in repair the tracks and switches of his employer’s freightyard used for. “breaking up and making up” trains devoted to interstate as well as intrastate traffic.—Willever, Adm’x, v. D., L. & W. R. Co., 87 N. J. Law, 348, 94 Atl. 595. Similarly a section foreman who, after having repaired a broken rail, was returning on a hand car to his station, and was injured while helping to lift the hand car from the main line that a train might pass, was held to be protected by the act.—Texas & Pac. Ry. Co. v. White (Tex. Civ. App.) 177 S. W. 1185. Again a foreman helping to replace rails on a road being used for both local and interstate freight, and so injured, was held to be within the terms of the statute.—Cherpeski v. G. N. R. Co., 128 Minn. 360, 150 N. W. 1091.
For illustration of the application of the statute to trackmen, these cases may be noted: An employee who had been engaged in repairing a trestle on an interstate railroad, and who was .killed while returning to the ‘bunk car” furnished by defendant to such employees, was held to be within the protection of this statute (L. & N. R. R. Co. v. Walker, 162 Ky. 209, 172 S. W. 517); likewise a section hand engaged in the “upkeep” of such railroad track (Truesdell v. Chesapeake & Ohio R. Co., 159 Ky. 718, 169 S. W. 471; Zikos v. Oregon & N. Co. [C. C.] 179 Fed. 893); a laborer assisting in the operation of a steam shovel employed in the repair and maintenance of defendant’s tracks, such tracks being used to transport interstate commerce (Tralich v. Chicago, etc., Co. [D. C.] 217 Fed. 675); an employee helping to remove trash or drift, so that there might be erected a temporary trestle or bridge for the passage of trains bearing both interstate
The rule of the Pedersen Case was reaffirmed in N. C. R. Co. v. Zachery, 232 U. S. 248, 260, 34 Sup. Ct. 305, 309, 58 L. Ed. 591, Ann. Cas. 1914C, 159, where the plaintiff had prepared an engine for a trip to remove freight in interstate commerce, and was immediately injured in going across the main line in the yard, in the direction of his boarding house. Mr. Justice Pitney said: “It is said that, because deceased had left his engine and was going to his boarding house, he was engaged upon a personal errand, and not upon the carrier’s business. Assuming (what is not clear) that the evidence fairly tended to indicate the boarding house as his destination, it nevertheless also appears that deceased was shortly to depart upon his run, having just prepared his engine for the purpose, and that he had not gone beyond the limits of the railroad yard when he was struck. There is nothing to indicate that this brief visit to the boarding house was at all out of the ordinary, or was inconsistent with his duty to his employer. It seems to us clear that the man was still ‘on duty,’ and employed in commerce, notwithstanding his temporary absence from the locomotive engine.”
In Southern Railway Co. v. Lloyd, 239 U. S. 496, 36 Sup. Ct. 210, 60 L. Ed. 402, the plaintiff was an engineer of an interstate road. He was proceeding from the repair shop, where his engine had been, and was injured on a side track as he examined his engine. The injury was held to be within the.act, under the authority of Zacharys’ Case.
In Pecos & Northern T. Railway Co. v. Rosenbloom, 140 U. S. 439, 36 Sup. Ct. 390, 60 L. Ed. 730, the plaintiff was in the employ of the railway company as a ticket clerk, and he was required to be in the switchyard, to take and preserve a record of the numbers on outgoing cars and to seal the cars which needed sealing. A long freight train was leaving the yard, on its regular run, along switch track No. 4, and, as required by his duties, plaintiff was walking between tracks 4 and 5, and near the train, and observing and noting car numbers, and while so engaged a
There has been no recession in the later decisions of the United States Supreme Court from the principle announced in the Pedersen Case.
When the federal act was first construed by the Supreme Court of the United States, this liberal construction of the act was declared (Mondou v. N. Y., N. H. & H. R. Co., supra) as follows: “The second objection proceeds upon the theory that, even though Congress has power to regulate the liability of a carrier for injuries sustained by one employee through the negligence of another where all are engaged in interstate commerce, that power does not embrace instances where the negligent employe is engaged in intrastate commerce. But this is a mistaken theory, in that it treats the source of the injury, rather than its effect upon interstate commerce, as the criterion of congressional power. As was said in Southern Railway Co. v. United States, 222 U. S. 20, 27, 32 Sup. Ct. 2, 56 L. Ed. 72, that power is plenary, and competently may be exerted to secure the safety of interstate transportation and of those who are employed therein, no matter what the source of the dangers which threaten it. The present act ,unless the one condemned in Employers’ Liability Cases, 207 U. S. 463 [28 Sup. Ct. 141, 52 L. Ed. 297], deals only with the liability of a carrier engaged in interstate commerce for injuries sustained by its employees, while engaged in such commerce. And, this being so, it is not a'valid objection that the act embraces instances where the causal negligence is that of an employee engaged in intrastate commerce; for such negligence, when operating injuriously .upon an employee engaged in interstate commerce, has the same effect upon that commerce as if the negligent employee were also engaged therein.”
So also in Illinois Central Railroad Co. v. Behrens, supra, 233 U. S. 477, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, on the authority of the Mondou Case, supra, and Minnesota Rate Cases, 230 U. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. l916A; 18, and others, it was declared that, considering the status of the railroad as a highway for both interstate and intrastate commerce, the interdependence of the two classes of traffic in point of movement and safety, the practical difficulty in separating or dividing the general work of the switching crew, and the nature and extent of the power confided to Congress by the commerce clause of the
Under this construction of the federal statute defendant’s requested charges A, B, C, and D were properly refused as misleading.
From such testimony it appears that, when Durbin gave the signal for taking water, he knew it to be plaintiff’s duty to come to that point to get the hose for such purpose, which hose was located as the witness explained. The jury were authorized to infer, from such knowledge of the status produced by the giving of such signals, that Durbin knew the probably serious consequences of striking the telegraph pole with the boom or crane while plaintiff was discharging his said duty in getting and putting the hose in said tank. Having given the signal to take water, and being then in the act of shifting the boom or crane or other machinery operated in the act of taking water, it was the duty of Durbin to so operate the engine and so manipulate or guide the boom or crane or other machinery as to prevent injury to those of defendant’s agents engaged with him in the act.
Let the judgment of the circuit court be affirmed.
Affirmed.