Louisville N. R. Co. v. Parker

PER CURIAM. Com- Insurance American Petition Newark,

pany J., Insur- Home N. and the Company York, for certiorari ance New Appeals and revise the Court of to review judgment Ameri- of that Court in and decision Moore, 778. can Ins. Co. al. v. C. H. et

Writ denied. GARDNER, ANDERSON, J., BOUL

DIN, FOSTER, JJ., concur.

(138 231) LOUISVILLE & N. R. CO. PARKER.

6 Div. 471.

Supreme Court Alabama. June 1931.

Rehearing Denied Dec.

630' Griffith, both A. A. F. E St. John Decatur, Cullman, Steiner, Eyster, H. Ohas. Weil, Montgomery, Crum &

appellant. appellee. Birmingham, Denson, W. A. 634 Ry. ; thorities Alabama Great Southern v. Bush, Co. 335; Skotzy, 25, So. Russell v. 196 Ala. 71 397, Ala. and au 71 So. ; King Co., thorities v. Woodward Iron 264; 487, Ala. Mobile Electric Co. v. So. 341, 176, Sanges, Ala. Ann. 53 So. 1912B, 461; Foley & v. Pioneer Min. Cas. 273; Osborne, Mfg. Co., Adm’x, Ala. 40 So. Company, Alabama & Wire Steel is, Ala. 687. That when So. alleges constituting plea facts such af per action, firmative defense se bar expressly pleading such plaintiff’s need not characterize as risk assumed. Smith v. Hurt v. acts supra; Co., & Louisville R. Nashville Ry. Co., Southern 87 So. 533. And it further said of sufficient should be plea assumption risk, that it must show up ordinary ; is, risk that risk set normally a risk expected that is incident and to be employment, and not one merely negligente created the em ployer. If averment is of extraordi an. nary employment question, such risk fully pleading must show that the same was sought charged, persons known to be were so that its nature character obvi or ous that all persons engaged in and about employment natural that business and would ly reasonably risk and dan know such ger while thereto to those were incident ordinary care, they and that the exercise of appreciate a risk and decline such would go under-such forward their duties cir existing cumstances, or remain under appre so conditions assurance —and without ciating remaining deemed danger known to them. assumed the risk of Bierley Shelby Co., 93 So. Iron Jacobson, ; & R. 829 L. N. Co. v. 118 Johnson, 565; S. A. Co. L. 168; & Nash Louisville (Ala. Sup.) R. Hall 135 So. 466.1 ville Co. v. applies rule that This is statement of the THOMAS, J. C., R. R. I. & P. in federal courts. Employ- action the Federal Ward, 431; 64 L. Ed. U. S. 40 S. Liability (45 51-59) ers’ Act USOA §§ to re- U. v. Penn. R. R. S. Boldt damages alleged negligent cover Chesapeake for the death O. 62 Ed. 38 Ct. R. appellee. of the husband of Atley, The trial was De 36 Ct. amended count 1. Valley, Gila & North 60 L. Globe Hall, 232 U. S. ern R. Co. v. 34 S. Ct. pleas were amended three times 524; 521, L. A. 161. Ed. 47 R. 58 L. demurrer, rulings assigned after or and said are argued and will error be so considered. the Federal Em- has said under This court original pleas 12, employment Liability The demurrers 3 to ployers’ inclu Act that does sive, seeking up assumption general assump- employee to set defense of not involve risk, being sustained, rulings sep resulting negligence these are from the of risk tions his arately assigned for error. coemployees (Louisville The facts averred R. v. & N. Co. denying liability 131, 288, of such affirmative defense Porter, 135, So. 205 Ala. 87 and (and by way damages, not of diminution of many authorities; Gulf, & N. R. M. Co. v. May, 435, 439, Burton & v. 212 212; Sons Co. Ala. Williams, 481, 218 Ala. 119 So. Louis- 46) stated, by conclusion, Morrill, 39, 103 So. must be not 42, 211 Ala. N. R. v. ville & specially pleaded

but the facts in a suc 297; Fleming, & N. R. Co. v. Louisville 99 So. cinct the thereof 125); statement that must show 62, that and 69 So. that em- 194 Ala. specific risk was here assumed. Smith v. required ployee not to exercise care to dis- is Co., 676, & Louisville Nashville R. ordinarily, naturally, dangers and cover not 57; Dwight Manufacturing 123 So. 590, 593, 933, Holmes, 198 73 So. au Ala. and 1 Ante, p. 338.

635 employment Schmidt, 162, 168, reasonably in Co. 226 U. S. 57 L. Ed. to the incident v. 173, danger 170, engaged, 68. This which is 33 S. Ct. branch law is and he negligence employer’s or that of master and servant seems to be traceable result of the Clarke, 349, coemployees. Iron Co. v. to Holmes Hurlst. & N. 30 L. Woodward of his 397, 651, 1008; 135, Wade, A. N. 3 L. T. S. L. Exch. N. S. 7 Jur. S. N. 68 So. J. 869; 419; Rep. Holmes, 675, Hackney, So. Rob Clarke v. S. Week. Co., City Mfg. N. 9 L. T. S. 10 Week. 7 Hurlst. N. v. Pell erts 341; supra; Porter, Rep. & N. R. v. 405.” Louisville Proffitt, Chesapeake U. S. & R. Co. O. repetition, may we ob At the risk 1106; L. Ed. Louisville 36 S. Ct. employee pleading that the serve of this 156; Brown, Fla. R. Co. v. & N. required dan to exercise care discover Atley, supra. Chesapeake v. De & O. R. Co. naturally ordinarily gers incident to and extraordinary Horton, employment, 233 U. his or to discover A. L. R. Co. In Seaboard 1062, 1070, may negligence 635, 640, dangers Ed. from 58 L. that arise 34 S. Ct. 1915B, employer, 1915C, conduct the lat Cas. it is or for whose Ann. those L. R. A. may Pitney: employee responsible, in Mr. Justice ter is declared reasonably employer and his assume that the necessarily fraught employments are “Some discharge agents of that about and workman, danger danger — proper exercise the have will business is confronted in the line of his must be duty. essarily respect safety of such em care with normally dangers Such as are nec- may ployee. Such be his reliance until occupation pre- are incident to the contrary duly knowledge brought facts to the fixing sumably account taken into the notify him of attention wages. And a workman of mature rate of danger he lack of such care and the of which years sort, risks of this is taken to assume appreciates. actually them he aware of or not. whether is sort, naturally sustaining in- There was de risks of another no error But may occupation, pleas arise to the out of the murrers to said 3 to cident inclusive. employer pointed specific grounds to exercise due failure of the care of demurrer respect providing place pleas a safe with and suitable and safe of work effect that sustained were to the alleged appliances danger for the- that said of which intestate employee risk, negligence is not work. These treated as assumed the arose out of assuming officers, servants, agents, until he becomes aware of the de- defendant’s of employees, disrepair arising and of the risk fect or it, from and it is not averred that intes knowledge thereof, defect and risk alike are so obvi- unless and understood tate ordinarily prudent person dcmger time, ous at said said thereafter arising voluntarily the circumstances would have observed and incurred the risk out of appreciated These danger, them. distinctions have at the said circumstances recognized applied of; injuries complained been numerous de- for time of his Choctaw, of this O. & G. R. allegations cisions court. Co. aught appearing said McDade, 64, 68, 96, 100, prox v. 24 S. Ct. mer v. 596, 191 U. S. 48 L. Ed. pleas, plaintiff’s imately intestate’s death 230; Neg. Rep. 15 Am. Schlem- the de caused Buffalo, R. & P. R. 220 U. S. failing agents in servants or fendant’s 596, 600, 561; specific 55 L. Ed. 31 S. Ct. Texas keep no after reasonable lookout Harvey, P.& R. Co. v. 228 U. S. averred, persons said track while tice Valley, S. Ct. Gila G. against running the course of traffic trains Hall, & N. R. Co. v. 58 L. Ed. This south-bound tracks. northward on said 521, 524, 34 Ct. and cases cited. extraordinary danger say, it was may employee from the so arise does know of the “When de- employer, fect, appreciates whom the latter or those for risk is attrib- employee may responsible, bly it, and the reasona then he continues the em- utable ployment employer agents, objection, or his assume that without or without ob- part of his employer representa- its said or execution taining his or or his duly proper business, exercised or its an assurance that the defect will be rem- tive safety, plaintiff’s respect until employee edied, risk, care with assumes the even knowledge of the latter though facts come reasonably out of the master’s arise breach of however, inference of notice that duty. If, raise the promise be a precaution proper been reparation, during may had not care then such time as .taken, reasonably required performance, existed. and that its specified awpre danger, employee particular per- be made must time until the its speak employee, formance, relying upon him to him the about the facts the or danger consequent it was so promise, reason does not assume the risk unless ordinarily careful, person, in that a so imminent obvious least the no or- dinarily prudent the fail would have observed man under the situation circumstanc- his appreciat upon promise. premises, rely Hough in es such v. ure of would immediate, consequent danger. 213, 224, If this & P. R. 100 U. S. 25 Texas L. ed otherwise, 617; Brewery 612, de- & the federal statute Southwestern Ice Ed. were rule 636 may employee effect, weighing daring, re was ordered to unload ties about in co-op pounds along right way showing 150 that one each from cover negligent they injury moving erating fiat car on which stacked causes of his high, coemployee, in in would be crosswise being tiers five or six ties stacks act or omission of Liability high, employee Employers’ operative. Act 50 about inches Federal (45 man, years 51-59); age, average R. & N. Co. able-bodied 28 §§ USCA Louisville strength, supra; Chesapeake intelligence, experience, Porter, R. v. & O. Co. V. Atley, supra; before, & R. N. Co. had served as section Louisville hand and was De Hall, ante, p. 338, given training unloading although 135 So. ties never he had unloaded ties from train be- Proffitt, Chesapeake 241 & R. Co. v. In O. fore, injured employee when ties 1102, 622, 620, 468, 60 Ed. 36 S. Ct. L. U. S. top stooped tier fell while he was over Pitney 1106, em Mr. observed: “The Justice moving tie, directing, employee another order obliged ployee dis is not to exercise care to negligent.” do work held not ordinarily dangers not incident to the cover employment, opinion developed em but which result from the difference of ployer’s negligehce. question & Texas P. R. the last cited Co. case was on the 665, 671, 672, negligence Archibald, McMichael, 42 Ed. of 170 U. S. L. vel non of the su Rep. 777, Neg. pervising 1188, 1191, 746; foreman, 4 Am. 18 S. Ct. to allow or create the Choctaw, McDade, condition, etc., causing injury, &O. G. R. Co. v. and not on 64, 68, 96, 100, L. 24 Mr. 191 U. S. 48 Ed. S. Ct. Justice Brown’s statement of the federal 25, Rep. 230; 24, Neg. Employ 15 & P. Am. Texas rule which ers’ “The Federal follows: Harvey, 319, 321, Liability abrogates L. R. Co. v. 228 U. S. 57 Act the common-law 518; Valley, 852, 855, rule, places negligence Gila G. Ed. 33 S. Ct. fellow servant Hall, 101, 94, coemployee neg & R. 232 U. S. 58 L. N. Co. v. of a on the same basis as the 229; 521, 524, ligence employer. Chesapeake Air S. Ct. Seaboard Ed. & O. 504, 492, Horton, Atley, 310, R. 233 U. Co. S. R. Co. v. Line 58 L. Ed. U. S. De Ct. S. 1070, 1915C, 1, 564, 1062, R. A. L. 34 S. 60 L. Ed. 1016. And under th6euniform 1915B, 475, 635, authority, federal, Ann. Cas. Ct. N. C. A. both state and the em ployee arising does not 834.” assume risks servants, agents, the ployees or em Chesapeake & O. R. At- And Co. v. De employer for whose ley, 310, 314, 564, 565, 241 U. S. 36 S. Ct. Employers’ Liability is made liable 1016, Pitney again Mr. Justice Chesapeake Ry. Act. & Ohio Co. v. At De assumption observed risk that “ ley, supra; * * * Handley, L. & N. R. Co. v. plaintiff did not assume: Plaintiff 56 So. 539.” having voluntarily employ- entered into required proper ment that him on occasion assumption The distinction between train, moving board a he assumed risk contributory negligence of risk and under injury normally opera- incident important; the federal act is the latter is tion, might other than such as arise from the way damages, of reduction of and the for operate failure of the locomotive Roberts, mer is an absolute defense. Fed the train with due care to maintain a mod- 835, p. agree eral L. of Car. § 1622. Counsel speed plain- erate rate of in order to enable conformity with the decisions of the peril tiff to board it without undue him- Supreme Court of the United States the de right presume self. But had the contributory negligence provable fense of that care would exercise reasonable general under the issue actions under the held, safety, and cannot be Employers’ Liability (Louisville Federal & N. Act have assumed the risTe attributable Wright, R. Co. v. 202 Ala. 80 So. operation unusually high the train at an 93; Railway Peters, Southern Co. v. 194 Ala. dangerous speed, rate until made 94, 98, 611), being competent 69 So. and this danger, speed aware of the unless the mitigation damages. evidence ern South consequent danger were so obvious that an Ry. Chestnutt, Co. v. 210 Ala. ordinarily person careful in his situation 905; May, So. & Burton Sons Co. 212 Ala. appreciat would have observed the one and 46; 103 So. Mobile R. Wil Ohio Co. v. Valley, ed the other. Gila &G. N. R. Co. v. liams, 121 So. Louisville Hall, 94, 101, 232 U. S. 58 L. Ed. Fleming, & N. R. Co. v. 34 Horton, 1070, Seaboard Air R. Line Co. v. 125; Railway Peters, Southern su 58 L. Ed. pra; Skaggs, Illinois Cent. R. Co. v. 240 U. 1915C, L. R. A. 34 S. Ct. Ann. Appel 36 S. Ct. 60 L. Ed. 528. (Italics 1915B, 475, Cas. N. C. C. A. 834.” plea urges assump lant 23 is that of the supplied.) risk; interpreter tion the is its own under decisions, xjrovable Air decision Seaboard Line and was Hackney, general v. 870, issue. It concludes as follows: “ ** * proximate consequence was to the effect that: “Where section and as a employed proximate hand in interstate commerce with and as a sole result of his disobed Employers’ Liability (45 company, Federal Act US ience of the Rule of the defendant Comp. 51-59; 8657-8665) injured §§ §§ CA S.U. St. he and killed.” Under Southern

637 Railway Peters, 94, 98, 99, removing Co. 194 Ala. 69 v. tion men were dirt from the track 611, equivalent gen habitually So. this was on which south-bound trains ran. Railway purpose, eral issue. Grand Trunk Western which was not closed for this with- 581, Lindsay, 42, notifying change 34 Co. v. 233 U. S. S. Ct. the men of the 838, 1914C, traffic, notify failing 58 L. Ed. Ann. Cas. vio course of its inor employer engineer speed lation of a rule of the is held to to reduce his train .the contributory assump negligence, proceed and not with caution and control at this place. risk. & R. v. Jacob tion of Louisville N. Co. It will be noted that this was under son, 386, (6), 565; special exigencies Ala. 387 118 Loui 218 So. circumstances or ; Fleming, supra & N. R. Erie sville Co. v. track work. Ry. 325, Purucker, 323, Co. 244 U. S. v. 37 The second amendment to said 629, 1167; Ct. L. S. 61 Ed. Penn. Co. v. Stalk pleas sought charge intestate with knowl er, App. 163, 329, 168, 67 Ind. 119 N. E. edge could not maintain authorities; Reynolds (C. federal Davis v. particular an time, effective lookout at A.) 363, C. 280 F. certiorari 258 U. denied S. place, particular train, and on that 627, 798; Roberts, and that 383, 42 S. L. 1 Ed. 66 was, time, the fireman at 568; the same (1918) p. 1015, otherwise L. Fed. of Car. 2 Rob § engaged prevented with his duties erts, Ed.) him (2d L. Fed. of Car. 1622. Hence supplying a lookout. ruling The demurrer error, court was without points pleas deny out that do not plea (23) properly knowl even drawn edge part contributory negligence. as that of presence peril the immediate fireman of pleas The first amendment to said the intestate in time to have warned him to the effect that “defendant avers that said engi track. The averment off north bound train on the south hound track plaintiff’s neer could not see the be intestate place on the date and at the time and in cause 400 the curve for a distance of 300 or injuries, being op testate’s run feet, they is not the averment did eratives thereof with due and reasonable care question. not see intestate on the occasion in caution, and with the care to be reason sustaining There was no error in demurrers ably expected under the named conditions pleas place. as amended in the second merely aforesaid.” This clusion of the defects indicated to said introduced a con pleas In the third amendment to said de- pleader, and does not cure the fendant had the of benefit the defense pleas. Dwight Mfg. assumption risk, when is- took Holmes, 590, 593, 594, Co. v. 198 Ala. 73 So. sue thereon. It was: many 933, and authorities . “Comes the defendant and after demurrer respect general In to the rule that plea sustained 12 3 inclusive as amended ordinary trackmen are not entitled by 2nd amendment further amends each lookouts, warnings, signals (39 usual * * * pleas by adding said as follows: 460), authority J. is stated on avers that at in- apply special “1st Defendant time of same does not where there are injury approaching extraordinary testate’s heard train was affecting circumstances him and he knew that a train was employer, pres as where the approaching peril from the south and that employees par ence and in and at a being against into, over, of his run place anticipated ticular time or should be open him said train was obvious to employer at agents. or its L. & N. R. injury, prior and was time Williams, 453, 456, 458, Co. v. So. 199 Ala. 74 injury.” prior him 382; known Skotzy, A. G. S. R. Co. v. Ala. 196 335; 71 So. L. & N. R. v. Thorn Co. apparent allega material It is thus that the ton, 274, 778; Thompson 117 Ala. 23 So. in this are re tions amendment are Neg. 1839, 1840; 616, 12; §§ 18 R. L.C. 6 § assumption quired plea risk after Supp. pp. 4487, 4488, 112; R. C. L. Perm. § has care. the master exercised reasonable Atchison, etc., (Iowa) Bennett v. R. Co. 320, Purucker, Erie Railroad Co. v. 798; Evans, N. W. Ill. R. Cent. Co. v. 1167, 1168; S. Ct. 61 L. Ed. Chesa 37 peake Ky. 173; 536, 186 S. W. L. & N. R. Co. v. Atley, supra; & O. R. Co. v. South S. De Gamble, Ky. 91, 795; 160 S. W. Nelson Berkshire, U. ern Pacific R. Co. v. 41 Northern, etc., 388; v. Gulf, etc., 50 Mont. 148 P. 335; Chesapeake & S. Ct. 65 L. Brooks, App. 231, 63 Tex. Civ. supra; Proffitt, O. R. Co. v. Louisville & N. 95; Pittsburg, etc., Bennett, 132 W. Porter, 288; R. Co. v. 205 Ala. 87 So. 582; Sorrell, Ind. 116 N. E. Davis v. Wright, & N. R. Louisville Co. 202 Ala. 213 104 So. 397. ; Railway Chestnutt, So. Southern Co. v. In Louisville & Nashville R. Co. Ash 905; 97 So. L.A. Adm’r, Ky. 67, er’s Johnson, S. W. 168; R. v. 217 Ala. 115 So. 1918B, 211, employer A. Railway it was held Fisher, ren Southern injuries employee dered itself liable Louisville Nashville R. Co. Fleming, when it ran supra; Brown, fast Adm’r, south-bound train on a v. v. Louis past north-bound track where a sec- crew of ville & N. R.

638 merely 261; Labatt, court, note; 259, theories is stated Labatt, § Ib. 3 § 1 1207. § charge is when the considered there whole stating was no error. The court was a “the- in pertinent question here was covered The ory” operating “against ; of a train the traffic” Porter, Ala. 205 N. v. Louisville & R. Co. very carefully of movement limited to 131, 288, 135, 291, 87 So. as follows: existing.” “conditions then Thus was sub- assumption of “The distinction between jury question prem- mitted ises—whether of contributory negligence is made risk and in so or not it was 492, Horton, 233 U. S. 34 Seaboard Air v. Line running, oppo- the train schedule on the 1915C,1, 1062, 635, L. R. A. 58 L. S. Ed. Ct. signals site approaching train, without of the lookout 1915B, 475; & M. V. v. Yazoo S. Ct. Ann. Cas. Wright, being specifically after 130, 376, 59 L. U. 235 S. 35 plaintiff’s presence of intestate warned of 277. upon rapidly the track and in front assumption foregoing of of “The doctrine approaching support authorities train. The Supreme of Court risk is sustained jury question this as for decision under Chesapeake De & Ohio v. States in United circumstances of case. each 564,566, 310,316, Atley, 60 241 S. 36 Ct. U. Pitney court, 1016, ob Mr. Justice The use of the words L. Ed. where question “was him at acci ‘an instruction unknown to the time of the served of solely dent, risk, dealing assumption with unless that act was one that of ordinary was inci employment, employment,” dent to his hazards contract is free saying, pointing from error. known rule must was but “not out that different It actually, respect extraordinary applied him” an risk nor with was the knowl imputed engineer’s negligence,’ edge assump him. is attributable to the “There no probably knowledge tion of risk would have confused misled where there is no it jury. risk,” Again Chesapeake & v. the broad the Proffitt, Ohio term used in Southern Railway Chestnutt, 468, 469, 284, 462, 620, 282, 241 U. S. 36 S. 210 Ala. 622, 1102, 97 So. where 60 L. Ed. was said: authorities are cited. “ See, also, p. 737, ; Labatt, p. 39 J. § 940 3 ‘Negligence doing the work was 3662; Brown, Adm’r, Co., L. & R. v. N. gravamen plaintiff’s complaint, his the declaration as of in 275, 1001; Ala. 19 So. Southern Pac. Co. evidence, his and defendant 162, Berkshire, v. 65 L. Ed. and 41 S. Ct. making was not to an instruction entitled given charges 33, 37, 337. And system pursuit customary decisive clearly expressed the defendant’s issue, regard whether due care without rights pleas assumption under his risk. doing work itself. Even exercised instruction, appreciation The court’s at the time of the is in accord with an “and knew and assumed the risks of danger therein,” involved inherently doing dangerous method federal and our decisions work, risk did not assume the increased he knowledge appreciation to the effect that negli attributable, method, to the indispensable of sumption as- to a servant’s pursuing gence in it.’ injury. p. of risk of L. 20 R. C. say, employee ‘assumes “That is to 109, 95; Wells, Ala. § Mackintosh Co. v. employment, normally risk incident’ to his 276; O’Byrne, 118 So. McGeever may failure such a risk as arise from the 508; Chesapeake 203 Ala. & 82 So. employee so due care of some other as to use Atley, R.O. Co. v. U. De 36 S. Ct. coemployee discharge enable assumption 60 Ed. On employment without undue duties of risk, also, so, is the instruction of the court peril.” appreciated danger, that if knew the prejudicial no sustaining It surrounding circumstances, follows that conditions and ruling reverse knowledge appreciation or error to with filed, originally pleas as and put way danger, demurrers himself in when con- second amendments there- context, the first and in its de- sidered cisions, in accord was taken to. Issue after the third amend- and is without error. authorities See pleas. Marbury Jones, ment to the last cited in Lumber Co. v. 309; 23 A. L. R. charge portion The oral ex- to which King v. Woodward Iron taken, subject ception was and the So. 264. assignment error, fifty-eighth with- drawn, jury and the was cautioned not con- assignment The seventieth of error for the reason that he sider it did not intend exception shows that taken to the oral charge upon evidence, the effect of the that charge portion included a of the court’s jury judges are the thereof. charge objection, was free assignment authority sixtieth be considered error hence will not responsive exception reserved; Telegraph Hulsey, not is, Cable Postal Co. exception 527; Hudson, the record shows no Hawkins to what the Ala. So. Hurt, say. did “no” connection stated. 101 Ala. N. R. court is not word found Louisville charge State, the oral Bonner v. general plaintiff’s of one of announcement So. 226.

639 jury instructing the into the bound track was no error main line There defendant’s tracks, ville, Ala., Birmingham, of that enter between the several elements and Nash- damages Tenn., at of sustained. In amount its context the time of the infliction of injuries; instruction cumu- there no for double or said that the train which killed in- damages. any part lative items of If extra there testate was an ing train north-bound travel- charge explained, track, running of been on that could have the the south-bound explanatory it should have been cleared an as a same schedule north-bound train charge. error And no intervened then track; reversible due on said north-bound exceptions intestate, ing approach- under the as reserved. at the time train said point collision, the of was under im- the in no reversible There was error pression said train was said north-bound jury structing ages as to dam the diminution of train, approaching on north- said contributory negli element of the track, specific knowledge bound to the was no had gence, if shown. The instruction “The read: contrary; that no immediate accountability damages, or for defendant’s apportionment given approaching intestate said damages your of considera dispute train. evidence The was without proportion tion, the de would be the engineer on the said train was warned the of negligence bears the sum fendant’s total presence deceased, of of human be- being proper you arrived at as the ing, upon him; the track in front that in- of damage. repeat, I amount of whole will the testate was onwas said tracls on train which said damages amount of the to be found approaching, discharge of his du- defendant, you against any if find should tightening joints ties in of rail bolts found, proportion is in that his be bears track, in on said view of full side of damages, whole amount of —I engine train, on the fireman’s side of said for say negligence.” mean to telephone posts (or, distance of twelve as Earnest, 114, Norfolk v. 229 U. S. 33 evidence, See approximately fixed one-half 1096, 1914C, 654, L. Ed. Ann. 57 Cas. S. Ct. mile), aof while intestate onwas said track Ry. Peters, 98, 172; Co. v. 194 Southern stooping position, tighten- in a of the act Lindsay, 611; R. Co. v. Trunk Grand ing one of bolts at the said moment the train 42, 838, 581, L. S. 34 S. 58 Ed. Ann. Ct. 233 U. argued, reason, It struck him. the seen intestate 1914C,168. Cas. fireman was on the lookout he must have him; on exception the track in assign- front of reservation engaged engrossed knew that he was so specific was not as of error and 75 ments 72 pre- his work that he was oblivious of or required, within the rules. Postal and not any any approach noticing parte Hulsey, supra; vented from train Ex v. Tel. Cable Co. Cowart, 56, on track on 55, which was at work So. 349. 77 the direction ichich said train general re affirmative instruction approaching. was lookout, the fireman was on If quested by 1 count denied to defendant guilty negligence, he was under assign without reversible error. was ment of special case, the warning circumstances of this argument appellant for errors danger; intestate of if he was question: simple present Does lookout, engine, firing on but jury action a cause out make during time, said entire then the north- rules against under the federal the defendant running blindly bound train was bound south- tb.e rights govern to substantive as track, on the same as a schedule north- Johnston, parties? R. Co. v. Cent. Illinois track, bound train on the north-bound with- Hall, 866; N. R. L. Co. & 205 87 any signals approach, with the Henderson, Express supra; American warning presence that there was ahead in the There were So. 746. 107 being upon aof human that track. evidence as tendencies material relations of the train, circumstances,, so To presented run a under parties respective duties question jury (it has been causal combined or of of causal that negligence), evidence of whether held be jury. properly submitted to the care, run, train, was not run with due so Earnest, v.Co. & W. R. Norfolk reasonably expected under the unusual' L. S. Ct. Ann. 33 57 existing. conditions then and Railway Southern 1914C, Cas. (C. A.) v. McGuin C. 240 F. Co. (Woods, J.); 652, denied, C. certiorari 244 U. evidence, not under examine We will 1373; 61 L. Ed. S. Southern rule, S. substantive scintilla as 7; Railway (C. A.) v. Cook F. Co. parties. rights The evidence was un- 543; Id., relationship S. 38 S. Ct. L. Ed. disputed 245 U. master and Co., App. Fitzgerald existing v. Erie Railroad Div. between servant intestate de- 237, 239; Sweeney, S. Hines v. infliction in- 144 N. Y. at the time of the fendant Wyo. causing death; 165, 1018(engineer juries proximately 201 P. warned was 28 person track); dispute engaged presence of that intestate was without in Evans, Ky. performance R. of his Co. duties Illinois Central the active person (notice track); repairing employment, in and about south- S. 186 W. 173 firing looking Brightwell App. Lusk, 194 Mo. around the after curve 413; peril M. v. notice been Co. ahead? Lake W. Shore Murphy, N. Lou It has been declared E. that as between 50 Ohio St. Ky. duty Eversole, firing engine looking R. out for & N. R. isville 67, Engel safety people 1918B, the specific duty to whom he is R. A. S. W. Q. Co., 21, for, pas Chicago, 195 to look out B. & whether v. R. 111 Neb. Q. laborers, sengers, upon highway 528; 523, Chicago, & or v. B. travelers N. W. Brown crossings, licensees, give 316; prefer 315, 149, Co., or he must N. R. 134 W. 117 Minn. duty Chi., Co., ence to that conserves human which M. 57 Minn. Schulz v. & P. St. safety. 271, 192-193; Pennsylvania and Such are the authorities: life Com N. W. 59 Adm’r, Ky. 132, Gilmore, L. & N. R. Stalker, App. 329, Co. v. 131 pany N. E. Ind. 119 v. 67 (on (N. S.) 321, 21 R. re Jackson, 100, 109 W. L. 723 163; S. A. v. Ark. 93 St. Louis 78 hearing) ; Co., 646, Gunn v. Ohio 42 W. Va. S.) page River 746, (N.A. 8 Ann. Cas. W. L. R. 6 676, by 546, And, L. 26 S. E. A. 330, notes; 36 R. 575. if Pacific Smith v. Southern and duties, reason or 1913A,437-440, of their either the fireman 22, 41, P. Ann. Cas. 58 Or. 113 engineer, both, hindered, Line, or that a 445-447; Oregon 44 Grow v. Short proper kept, this does not 1915B, lookout cannot be 398, Utah, (assumption Ann. 485 P. Cas. 138 a master general as matter of law relieve the duty of risk). statement See of circumstances, special aof lookout under text-books, 16, 17 in and that track, intestate The witness was ten or There and which made facts, track. There error ing dict & N. R. Co. v. injury, engaged gence proximately fect sult of the failure connection with ing mitted to routing signal tion as had ponderating evidence, ican, double track.” right I have some, witness occasion. and their order that station station. With hound track and train No. 98 was es, on the north-bound track. track; over It We will In straioherry traveling and has heen question the time respective train “that been under the that: my response results shortly so I that he - that was made fifteen minutes before the time Johnston, here that train No. testified dispatcher, route division. gave doing doing No. There are just my division, numbers, causal stand train would or “It again warranted no reversible challenge to the witness show amI from th after cars, 6 were to ato Hall, supra. duties, triers of fact federal diverted 72 on the south hound them over done at the train this since it was a signal,” at (Italics supplied.) this in his work that but for the and its his thereof, advert 72 properly where I question by that he saw intestate the course of resulting quite since there has been a and as keep necessity was a -over thds track on this information by undisputed several" tools combined causal and the extent and re and refused that e rule. and signal and sustained rulings No. foregoing time,” come over meaning, to the evidence in every either often error Alvis, along 98, should jury questions has been special consisting allowed touch they pass every Illinois Cent. R. to determine assignments that they pass and reason big the Pan that that a track- explain properly on evidence. train is dur- track, that “What was my established sheets I have charges. with them particular those cas- I approach court, the track the north allowing is, had the 866; to state have, delayed connec- on the the ef double injury track? were a Amer- and negli what each been that sub pre ver L. amination, I I fied R. Co. v. witness was not an track and the answer bound train. supra. are bank, vel non. The witness was like train was swered. This was sufficient. Louisville & N. jury. he his contributions reversible ahead,” rial under the whether was likewise like casion he “nodded his otherwise stated the fact. v. Keith 508; 103 So. that his among hands nal was supra. witness Southern ern “threw something there engineer by been at that Ante, p. thought opinion as an reserved Ry. that, this, 72 Am. Burton & asked, 193 Ala. wasn’t A. G. S. R. Co. v. about 4 or such servants or An time.” proper subject 46; up or “made a given. Co. (Ala. Sup.) warning Ry. and indicating. expert. Porter, It was also without error error as to these about close ahead of the question, his in shorthand rendition of fact that objection its both of his hands and earning capacity father-in-law as Choate So. to witness St. Co. v. competent, any issues pointed awas Southern meaning conclusions Burgess, Sons He It had not reached the curve 373; answered without half Rep. 943; giving supra. L. & N. R. therefrom to beneficiaries ditch-? 6 expert; could 69 So. 134 So. Linn, signal Co. v. inches and his head,” and several north or south bound ahead. Then when the I past Alabama fact Southern that acknowledged by put was that “there was stating, Cornett, 119 Ala. of the usual agents; relevant, have also And there was no 137; inquiry of some kind.” May, presented, I me a caution of conscious 630; he could not have the apart, blew the it Reaves v. made of deceased and asked, rulings, Co. v. brother, awas train,” he Great South palms 212 Ala. witness had Ry. Co., on cross-ex on this oc 134, Ala. Great before the exceptions and mate something expressed a objection, McGuin, and an whistle, to show pointed for the Porter, though motion north signal quali Jones May pain sig say my So. So. It jury. proof But In case of dispute was for intestate between of no knew that he Frazee, any 211 281, ler v. U. S. wife; differences heard of never his ; anything” said: the the 53 L. Ed. “Where that “amount them

between and combination out which elements danger in conversation state Parker did “Mrs. always ago just arises visible it cannot be a while testified man who with the danger apparent going himself that law, kill said that the the to itself is so her husband present night employee held, morning. Mr. must be as matter of I was my daughter. understand, appreciate, the home and assume at Parker’s death anybody Swearingen, daughter my & P. tell risk it. Texas R. Co. v. I not hear did told babies and 196 U. Fitzgerald 49 L. Connecticut 25 S. Ct. he kissed that time that his they Paper Co., morning nev- would River babies going' again, Rep. to kill 155 31 Am. N. E. that he was Mass. St. him er see objec- answered, may 464. The conditions have been over visible He then himself.” defendant, danger arising exception was The origin, recent tion of them and family.” cases, loving may “very obscure. In such kind to been stated, perhaps word “lov- exclude could others defendant moved ing,”'which excep- assumption question overruled the risk is motion jury. plainly While the condi defendant. apply But where tion was reserved long standing, re- question to intestate’s and of tions are constant was made suggested wife, yet broad answer was is one lation (cid:127) possess, knowledge “to his enough his relation all to extend to common augmenta- rebuttal, dangers family”; not ob are was for conditions and both vious understanding, damages. and tion of common to the intelligence, age, employee quate ade and full damages of under of measure The experience, of all elements and these by upon Mr. Jus is commented federal act contradiction, problem appear without Michigan R. Vree Cent. Co. Lurton tice land, 417, evidence, question' plaintiff’s own from the becomes 57 L. U. S. 33 S. Ct. of the decision one law for the of 1914C, was There Ann. 176. Cas. Upon a of the evidence a state court. showing of the -widow’sloss no error in sustained, be cannot verdict for the during help the exercise and service and presiding duty judge of and it is the the companionship society the hus of jury accordingly. trial to instruct competent and was band. And the answer legal & P. R. objec Patton v. Texas presented. No issues cit there cases 21 Ct. L. Ed. ed. The case to to answer made that the extended tion was within this class.” at bar falls question family, was limited the his relation while Camp, Sovereign may say as a husband. did We here defendant that Hoomes, W., by engineer contradict, attempt fire- W. O. or or its special charge had 686. widow theretofore testi of cars So. The train man in of the stating sig- warning objection, contradict, question and after what or fied without ahead, family, spent peril “He on his that: track be made and seemed like dren, nal of immediate on always point of col- given, lision, by Virgil hind his was chil from the about a mile he a, workman, good good I section husband. defendant’s then father given after hit and while was That this notice saw him still seemed he was he he Alvis. by living; corrobo- is likewise he still conscious. He received great pain. A. Alvis. He like rated Eddia to be in seemed got suffering I him.” awful when testimony plaintiff’s in- Alvis’ shows Mrs. (Italics supplied.) latter The statement of discharge of his killed testate Sovereign competent. Camp, tight- facts was W. O. had and that he trackwalker duties as supra. W., Hoomes, expressions, point And the fishplates of his at the to and ened the “good “good husband,” children,” father,” “kind beyond point. injury, train that “loving order, spe- and kind his fam diverting dispatcher issued this ily,” strawberry consisting mere shorthand renditions of fact were of cars train cial rule; competent track, within the were to rebut the south bound the north to is tendency of defondcant’s evidence that set out above. husband and wife did not entertain cordial for defendant The next witness morning at the time and relations question, (D. Alvis), A. who testified foreman section contemplated suicide; and that he date, that, duties on that intestate’s of that he kissed children said duty things, among it was to look other “Papa this the last kiss son that time will passed, and had that witness for trains you.” had If evidence been irrelevant to charged him him and likewise so instructed tendency issues, of the dence ther defendant’s evi safety book of of the the observance with rules made the relation fa as husband and gave him. This of book which witness Gaines, material. Gibson right running specified trains in of rules 583, 73 notice either direction without either charges say that witness stated We to refused This further advert track. grade question presented pleading and,, pulling vibrated the track for under the trains track; and along either to which a fixed run on distance when train diverted and proceeded physical to two which it one north. another witness facts proper deceased feet. where was stricken showed hundred tightening and continuous of a number of (Higgins), supervisor as a wit- plates along point and bolts the rails to the defendant, spo- testified that he had ness for ken with injured, beyond. where intestate was and not plaintiff’s of the intestate signals warning The evidence showed no trackwalker, care to be exercised approach immediate danger particularly him the cautioned train, only danger signal and that might against diverted trains be or given, signalled when Alvis said traffic, the course of and that vibrations charge special engine of the north-bound at a thereof can be felt from 100 distance danger ahead, train of the and that this was feet. to 200 place injury plaintiff’s from the mile Trammell, Stewart, Lipert, The witnesses intestate. Sammy gave tending Parker evidence company, The violation of the rule of the baby expect show Parker did not again, to see the judgment Justices, in sented a pre- all crying he was left when he question contributory negligence, morning; home that been ill and assumption and not of risk. That getting with his wife. on well And the p'ioperly the instant cáse was submitted to photograph identified was introduced evi- jury weight evidence, under the dence. and that no reversible error was committed There was defendant of no denial refusing general in tions affirmative instruc- danger signal giving receipt requested by defendant, judg- is the being a .human the track about a mile ANDERSON, J., ment and concurrences df point injury plaintiff’s from the intes- BOULDIN, GARDNER, FOSTER, JJ. tate. recovery That no should general requested affirmative the in instructions fact indicated that the and suffi- We defendant, writing should have been for ciency peril notice of a recovery and that no evidence, had should be under the being the track ahead human train; of said judgment is the of SÁYRE and given by Virgil engineer, Alvis the to BROWN, JJ. contradicted; were there was not cies of evidence nor tenden- that notice was not charges sought Refused 40 and by engineer. given the and received There negligence instruct as to of to the effect the of tendency thereof, was evidence to show deceased, justified no or in were and their re engineer doing- the and fireman were what after ceived contributory negligence making fusal for of peril given was re- deceased, notice of and the hypothesizing, without so it that engineer, the and the proximately injury to contributed and latter; by the there was no then tendency justified sounded Charge death. 40 was further extent or evidence of the ob- the leaving jury its refusal for to the a mislead affecting engine as en- struction of the the tendency ing in the definition" the word ” gineer keeping or Barton, fireman a lookout itas “negligence. Brilliant Coal Co. curve, photograph, shown rounded 203 Ala. solidated C. & I. Co. 81 So. Con Alabama point contact; to the there no evi- Heald, Adm’r, sig- dence a or lookout maintained many 53 So. and author given, away given a nals other than that ities; Birmingham mile Ry., Light Hammett v. signalled engineer. when Alvis (8), Power So. 22. jury The tory negligence proximately was not concerned with contribu deceased, when he heard the train hypothesized not to have blow, go stated to Mrs. Alvis that he would injury contributed to the and expressed for get reason wanted to Peters, death. Southern approaching across the track before the 611; Norfolk, etc., Co. v. Earn him, blocked or him train ran between and est, 654. 57 the south-bound main track. line This 1914C, L. Ed. Ann. Cas. shows, Refused strongly show; or tends to charges when considered with in expecting regular train deceased -from given, structions Moreover, were without refused error. track, the south north-bound charges confusing these special going not a on the south-bound track. or extra train north recovery stating the effect on of contribu It is further tory negligence proximately contributing as from deducible sion gineer the evidence and the divi- injury this, to suit under federal order, — track ahead of this en- charges These statute. were: question (the regular- train gentlemen charge you, jury, ahead) pre- I track cautionary was obstructed “40. and as a cause, you evidence, said train measure believe the in this diverted guilty negligence undisputed, It is D. Parker was avoid collision. further Samuel indicated, following engineer safety violating as have the same rule the de- we * * * specific warning company, usual hu- fendant to-wit: ‘On or some dou- had required step being man was in front of him ble trackmen are off of track passing or run with due bnt so run such trains should be both when trains tracks reasonably care, over reasonable be such care clearing approaching not cross do trains applies expected under such conditions then upon This track. or to the other stand ” ** * existing. The deceased did straight track.’ as curved as well would been assume lack of care that have jury, charge you, gentlemen I “52. by reasonable, prudent, so used careful man guilty con- plaintiff’s intestate operating said trains. negligence.” tributory keep- something “There is said here about intés- testator’s was no evidence that There ordinary Now, ing proposi- a lookout. as an upon tate the track. stood general rule, of law as a master tion feder In a like this suit required keep men— is not to- a lookout for application (45 §§ having USCA al statutes upon employees, duty whose to be it is special 51-59), notice facts as to along discharge their the tracks immediately proximity on the track human preceding duty. Ordinarily engineer operating an injury, ab neither side trains, train, right operating or this safety. trackwalker’s insurer of the solute may might assume, assume, as- have this, observed that will be Pertinent the section sumed that man would be on charge as fol oral had instructed court protect against train lookout and himself employer em “This contract lows: way, ex- run empt lookouts, the usual this does not but upon imposes ployee certain duties each duty keeping an applicable parties. this So far as the case, say oper- I or when —those master, imposes or relation train, keep ating lookout a in for track- duty negligently legal in employer, not to caught may discharge men who be of their jure employee; rests kill the 'the duty unawares, so nor would it excuse those employee means use all reasonable sig- necessarily giving operating a train proper performance awith due and consistent ordinary prudent, nals such man would and careful him protect life or his own of his duties have under like conditions (cid:127) injury.” federal That under the self from ordinary Under circum- circumstances. recovery it is unless can no “there statute give sig- conditions, stances and failure to satisfactorily the evidence shown alone, nals, standing negligence would constitute defendant, agents, jury ants, ligence its serv that the tracks, towards workmen on neg guilty employees officers,was keep taken with the failure a look- when bringing about the in the matter of might out, under certain conditions consti- party, and that this death of was you negligence. That to determine. is for tute injury.” proximate And cause may saying: defined, “In this been case deceased actionable “ obliga contributory guilty negligence, legal duty ‘First, of or or that there ais could failing keep his been under have in to a lookout for in is tion which this defendant case the safety trains, approaching duty protect plaintiff’s own from of such but to the intestate negligence death;’ second, negligence injury and, the would excuse that there not or duty; operating trains, they negligent discharge those of if such the a to failure negligent and, third, jured any injury circumstances in under conditions and place that he—that reasonable, acts, at a time a when the same resulted— prudent, injury proximately careful man acted would not have and that from. There must be causal connection there resulted * ** way. that be a negligence complained of, tween the say is to that a in “The has offered defendant this .case of, injury complained the acts and the *** you, certain rule that read to injury is, suffered—that sulted duty owing have re .must you be- which rule I have or do to as declare consequence of as a direct of breach ing rule, Company a reasonable on which the case, did if it the deceased this right enact, adopt. you a is had It to for any.” legal “care,” owe him “due effect effect, place, determine what or what or the illustrated, care,” “diligence” is probative that force rule should have by that the “the concluded the instruction same your determination what be verdict should charged required party with is in this case. degree and dili to gence larly that of caution exercise pass company “The railroad a could not man, prudent simi which a and careful liability exempts per rule that se them circumstanced, have situated and would negligence negligence of their for own or the charge, Proceeding with oral exercised.” employees scope acting their while within jury as were instructed follows: employment. and line of their “ * * * risk, The deceased assumed the you “The has that the evidence shows there was defendant introduced other if find also necessity risk, that occa- with trains evidence here reference to location such a sionally grade— frequently run the South of the tracks —with reference or North on they without track or thdt so ran ne- reference to curve—with reference bound cessity by therefor-, might made risk assumed was that be that but this so the vibration place explanation subject or that limitation and that or similar trains so run at to the train they Parker, ordinary places; intro- em- also risk of his similar have assumed the you, ployment, which, fully known duced evidence if believed when or obvious extraordinary question appreciated him, truthfulness and would tend to call in or risks, negligence em- of certain of his correctness of statements and those due to * * * ployer plaintiff’s employees. case. Those witnesses this and fellow your peculiarly falling within matters you “39. If that believe from evidence * * * say you province. Now it is negligence in guilty E>. Samuel Parker was any in- whether not has been evidence or there maintaining lookout, not a watch for or showing tending that troduced deceased, tory or to show negli- him, train which struck and that Parker, guilty Mr. of contribu- only gence sole, proximate cause was the ought negligence. Probably you know injury you death, re- of his then cannot contributory negligence pre- .is. As what * * * plaintiff. turn a for the verdict requisite contributory negligence there part the defend- must ant in be charge you, charge of “46. I that those thing being con- this ease no such engine right defendant’s had act neg- tributory when there is no plaintiff’s rea- belief that intestate would take ligence, very because the term indicates that precaution against approach sonable * * * negligence. it utory negligence In contrib- contributes other said train. the essentials are that charge you, gentlemen jury, “48. I plea party against interposed, whom the employed walker walk over only is, case, the deceased in not obstructions, and watch tracks and move knowledge danger, but he the condition of frequently passing while of trains appreciated ing danger under the surround- track, and over said in- the risk assumes conditions; and with circumstances and jury ated, being properly oper- struck trains ap- knowledge equivalent, and that that preciation had, its adopt and the track walker must for» did exercise reasonable protection, safeguards against in- reasonable knowledge premises, care with such * * * jury. way appreciation put himself into * * * danger. charge you, gentlemen jury, “49. I operatives engine of said had the “Now, you it all the evi- is for to consider right presume that if trackwalker was ’ de- dence and determine whether ceased was engaged ip track, his duties said guilty any of contribu- measure operatives right the to keep said the train had the tory negligence, is, negligence that I presume said trackwalker would you, proximately defined to contributed way train.” said injury. When considered connection with the fact, fact, you “Now the find to be a foregoing instructions, there was no reversi- guilty contributory negligence, that he was charg- ble error the refusal of defendant’s that within itself would constitute bar es as follows: action, to this but it would and nrast be by you arriving considered the amount charge you, gentlemen jury, “51. I damages you you render, provided shall plaintiff’s that in so far as intestate is con- you reach the conclusion that find or should operatives cerned, the of the defendant’s train plaintiff.” find for the track, plain- were entitled to clear duty tiff’s intestate’s look his When, to after however, the of oral whole the safety.” own charge together, no considered given error and to reverse in the instruction charge you, gentlemen jury, “57. I of the exceptions to which were reserved. plaintiff’s duty it was to intestate’s trains, put for look out and to himself clear company by The rule of the the referred to upon ap- of tracks, tracks which a train was the court was to the effect that on double proaching.” straight quired curved, as well as re- trackmen are step to off both tracks when trains duty aWhere trackwalker has the .of .“60. passing, clearing approaching in trains walking trains, a track watch for to employees that such stand do not cross over or in defects the roadbed the railroad com- of upon the other track. pany, charge you, duty I it is the of the trains to trackwalker to look out for keep instructed, The court defendant’s at approaching trains, a lookout for request, as follows: coming avoid in contact with them.” to charge you, gentlemen jury, “33. I of the Parker, Samuel D. chat ry assumed extraordina- charges sought duty put the to sole These employment, risk incident or risks upon plaintiff’s intestate insure his own by negligence, caused were obvious or the defendant’s which safety coming avoid in contact with” —“to fully appreciated known and (whatever approaching special trains the the * * * by him. 60), charge in look circumstances “to were charge gentlemen you, trains, put “37. I jury, himself of out for and to clear case, upon approach- that under the law this D. Samuel tracks which train 6á6 Light Co., duty required 158 Mass. v. Boston Gas ing,” though South it was 135, 1119, though E. 47 R. 161. There 32 N. L. A. there, the defendant’s work request refusing peril agents on was no error in defendant’s his immediate advised were typical. charges employees, 53 57); ed of which (charge defendant’s track intestate,

though plaintiff’s “were warned form, Charge for the bad use 56 is track, plaintiff’s in- a clear entitled to though,” and its refusal was the words “even duty his own looh was to testate’s safe- after justified reason. -word “even” peril probable specific of his ty,” notice after supposi against intimation carries charge sought in 51. the track —this Light Ry., Birmingham & Power Co. tion. v. 161, 584; Saxon, Birming say, charge not erroneous 179 Ala. 59 So. 60 was That tois Ry. 296, Campbell, ly charge oral Ala. with the ham v. 203 & A. Co. when considered refused charges authorities; 40, 48, 300, 546, given and 49. Manistee 82 So. duty 871, Hobdy, 411, was his “to Ala. So. Mill Co. v. 138 165 51 instruction And the avoid trains exacted 73; State, approaching Rep. coming Miller 107 Am. St. v. contact” duty high degree 60, 37; 40, v. Birm 19 So. Hammett too ingham 520, Ry., Co., in plaintiff’s absolute & P. intestate —that L. safety, whatever the im his own surance of mediate and 22. special circumstances were. charges requested as to The several Charges go duty ring and 57 did far bell blow respective enough defining give warnings, measures time and whistle or parties, misleading tendency place, ignore and were of duties of of the evidence duty explaining given; warning due care that of thus premises, premises warning rested after defendant care that of due after being jury. of a human the track notice There no error in were for refusing misleading approaching train. charges After and ahead of notice or warning presence plain foregoing for the omission or defect. These track, probabili charges province jury. intestate on the tiff’s invaded not, ty injury, the latter did of his Charge 64 was no abstract. There-was evi- rule, the federal the law of due care and support hypothesis dence intes- solely negligence. only risk assume the causal attempted tate to cross the without due is, agents and its That defendant precaution, when stricken. notice, (after jury) believed were if required maintain due lookout There no as error to the instruc notice, and distance after reasonable time damages may tion ed attributable be award-. thereof, precaution to take due and to warn or reason proportion the amount approach immediate employer, diminished reasonably employ train, and contributory negligence plaintiff’s in agencies under the means at hand and is, parties testate. That both cul injury. unnecessary avoid circumstances to good pable, make must contribute to both Fleming, v. R. L. N. Co. See damages. May, 212 Burton & Sons 125; 51, 62, Pacific Northern v. v. 69 So. plain, 435, 440, made The court 1; A.) (C. R. F. Erie Co. Maerkl Purucker, charge excerpt from the oral we 37 S. Ct. 244 U. S. above, “damages” quoted word that the 1166; Chesapeake R. Co. & Ohio 61 L. Ed. “negligence” was intended for causal Atley, 36 S. 241 U. S. Ct. De (causal) negligence.” “combined The rule Humphreys, 1016; Aerkfetz v. Ed. L. Devanter in Mr. Van Nor stated Justice 758; Boldt, L. 36 Ed. S. S. Ct. U. Earnest, folk 120, R. & W. Pennsylvania Adm’x, 245 U. R. Ct. 33 S. “ * * * 139, L. Ed. South 38 S. 1914C,172, The stat Ann. is: Cas. Adm’x, Seley, U. ern utory Pacific diminution shall be direction that the L. Ed. Elliott 14 S. Ct. proportion at to the amount ‘in (3d Ed.) was the § 1862. It employee’means, oh Railroads knowledge to and can tributable proximity dangerous that rais of only mean, that, negligence where causal the partly to master. of care as the partly ed the due him and to is attributable to Co., Utah, damages, carrier, R. Pacific 5 Pidcock v. Union shall not recover full the he 131; Foley 191, 612, only proportional amount, bearing A. 1 L. R. v. 19 P. a the but same relation Works, 294, neg Mass. 149 21 as the Pettee Machine to the full amount 52, 51, ligence 304, carrier bears to L. R. A. notes of ex attributable to the N. E. 4 both; negligence assumption general ceptions risks; attributable of the rule of the entire being abrogate York, purpose the common- v. Ontario & the New West Hunter exonerating completely 615, 9, carrier the law Y. N. rule 116 N. 23 E. 6 L. ern R. liability case, 246; Georgia Dooley, to substitute in such a and Pacific R. Co. v. A.R. rule, confining 342; to a 294, 923, the exoneration L. E. 12 R. A. new 12 S. 86 Ga. damages, correspond 348, part 910, Schwenk, proportional the 144 Pa. 22 of A. Kehler negligence ing Rep. 633; O’Maley 374, attributable amount of Am. A. 27 St. L. R. 13

647 Liability employee. Employers’ ware, 7, Koske, the Second L. W. R. 279 U. S. Co. v. York, (Mondou 578; New 1, 50, N. H. & ases 49 S. Ct. Line Ed. Atlantic Coast 73 C Co.) Driggers, H. R. 346, S. U. S. 56 L. S.) 44, (N. Ct. L. R. A. 169.” cannot Ct. 73 L. Ed. 521. And Lindsay, injury. Trunk W. R. 233 U. Grand Co. inferred from the be the fact To- of ledo, Allen, supra. L. Ed. Ann. 34 S. St. L. & W. R. Co. v. 1914C, Cas. 168. complaint The case tried which the was counts, ascribing consists the of two the first re-ex The whole evidence has been injury negligence plaintiff’s and death the of intestate to court, amined the and on insistence the. the servants or defendant’s argument appellant and the verdict agents engaged operating train; and in the excessive, contributory was negligence regard facts of the injury the second count ascribed his and death plaintiff’s in intestate dis subsequent negligence negligence after company, known the and — rules of peril. discovery the agents, that of defendant’s as have in we dicated, and federal under the statutes pleas assump- general issue, The were the cited, decisions the verdict excessive. risk, contributory negligence tion of pleaded repression damages. court a verdict ANDERSON, directed for defendant J., GARDNER, BOULDIN, C. complaint, FOSTER, second count of sub- JJ., opinion are jury question judgment mitted the simple case conditionally, _ should affirmed negligence. initial writer concurs. Justices SAYRE this the express point. no view on BROWN The defendant now insists that the court judgment And it is court that refusing in count, erred other direct verdict on appellee remittitur, provid- unless files a as being: (1) its contentions That by law, ed thirty days, with the clerk of this court within showing is an absence of evidence or judgment reducing $7,500, tending guilty to show that the trainmen were judgment is reversed. And if such re- negligence; (2) the evidence shows duly judgment filed, $7,- mittitur is that sole of said intestate is the February 12, 1929, with interest from proximate death; (3) cause affirmed. that he that the evidence shows risk assumed his death resulted. which sum, accepted, To the above interest legal calculated at the rate to be from the developedby The facts the evidence few judgment date of rendition of in the court plaintiff’s material without conflict. The cent, below, per penalty, but without the intestate, Parker, Sunday, May 6, Sam cases, as held this court numerous engaged while work of a track- among Millonas, U. them: S. F. & G. Co. v. defendant, walker for killed was run 520; So. L. R. A. forty pulling locomotive train of Thombs, M. L. & W. P. Co. v. upgrade. cars The railroad was double- 87 So. Western v. Bash Union Tel. tracked, train, provided by insky, company, rules of with which said intes- familiar, conditionally. moving Affirmed tate north on inmain obedience to orders south-bound dispatcher, the train ob- ANDERSON, J., GARDNER, because some BOULDIN, struction on main. FOSTER, JJ., the north-bound train concur. special, carrying awas ears with loaded . strawberries, running and was on the time of JJ., BROWN, SAYRE and dissent. regular fifty-nine train No. 6. Parker years age, experienced trackman, with- (dissenting). BROWN, J. infirmity hearing sight, or agreed authorities are that-in cases roadbed, tracks, familiar and sched- brought Employers’ under the Federal Liabil- ules, having engaged in been this work Act, ity ing has burden show- years. two or more justifies jury pro- evidence appears evidence, So far as one ho verdict, ceeding defendant, its of- stricken, saw Parker time or ficers, servants, neg- agents, guilty previous four or five minutes for The last thereto. ligence part proximately In whole person him ac- observe before the causing injury resulted and death Alvis, cident Mrs. Belle the wife of employee. Illinois R. Central Co. John- foreman, who testified as a section witness for ston, Air Seaboard plaintiff. the She testified: Horton, Line R. U. S. Ct. 1915C, 1, L. Ed. L. R. A. Ann. “Just before the train struck Mr. Parker 475; Toledo, 1915B, sitting L. W. R. Cas. St. Co. I house I was the the door. Allen, U. S. 48 S. the from Ct. could see door I was where Gray, sitting. just I Mr. Southern saw Parker be- U. little bit L. Ed. time I 36 S. Dela- he was struck. The last him fore saw pick, facing words, going on, and I saw was wrench south. In other when had his he he was him, tightening bolts, up last he going the was the and he the railroad on and I was we tightening facing bolts direction from the train was I him him. saw saw coming. tightening I I my hit him he he was I saw After The bolts house. there near facing tighten place where I was south. saw him several the bolts between looked at way. place my time, he where house and I-Iehad been over saw him at the was my see You could he I heard this train com- that. when left house all did hit. We my tightening ing. he I heard them. After When he left house the train had been where he was hit I saw there tightening making grade. something pulling had turned It was then a lot this where up continuously ground, place he was it where I heard on at noise and to That Mr. was struck. time the accident occurred. he when the bolt joint. hearing right there bolts was all as I' right The Parker’s far at the rail was * * * every day peri- hipa some tightened. I had over a saw I seen know. had been hearing years, impression ground hurt on his this man was od was four or five of some when * * * joint. know, good. right good I did as I at so far it was beyond any tightened he see where “Q. you that he train he tell heard the Did place. before train blow hear the I did not coming? Tes, sir; I asked him to sit down good My hearing was Parker. Mr. struck it —my there, naturally I was husband good I have been now. and is that time at down, ‘No,’ him to sit and he said he asked would sometime, coming living will it this fall there go across the track before train * * * Well, really, I years. don’t coming, it. heard the train he blocked He place standing man where the at the know— * * * to have heard it. The was bound fireman I see the far can was struck —how coming Sunday. Mr. on Parker accident occurred engine. judge I am no on north along walking place at that had been track fm- poles telephone X distance. counted good many years. you I not been a could tell request day Denson. I Mr. at the other many years, good just but had how it say just I now how know don’t could many. I whether it has been as don’t know recollection, many My there best there are. long years. I don’t know how much as two believe, (are) remember. I best I can 12 I ** * walker. had been a track he fireman rides on left side of know that house set there on the * * section houses and tool * go right up engine.. did not I there curve. Back the track and east of was man was hurt. The train where curve, house there south the tool hurt, he him when was me and between * ** up grade. The north bound it is I hurt him. had the train I did not see my house and the between south track was four or him for some five minutes before seen ** * then, 6 was bound track. north-bound No. due him, something that. Be- like the train hurt * * * track, the train. This him, I seen the time had last tween track where Parker had been south-bound hurt, an interval he there was time that was working, side the north- was on the other I minutes. When last saw of four five my house he he track said bound wanted from rail south- him was he west get the train across before blocked track, almost was bound and at this time he him.” got he of the tool house. When front sight. my house, tool he went out years Virgil Alvis, twenty-three old, a wit- place I the disturbance on where saw plaintiff, that he ness for the testified worked joint ground north was the fourth day section, Parker’s up I am of that. I there tool house. sure went duty, walking but was not on death he away. they Parker I taken Mr. after didn't pleasure; ho down railroad track for right go up him at he was all while he Parker a mile south about of where saw was the south-bound tools hurt, I him after I see he was there. did walking killed; Parker was then' got I close to him. over on the same going his main north track was on side of the train he afterwards. twenty back; on his that about up to'pick up pulled him and I went freight thirty minutes thereafter he met on the other after the across over train had side Parker; there rah and killed train that it up. pulled forty I saw Mr. Parker when and about consisted of the locomotive they putting Mr. in the caboose. Parker cars, pulling grade; when they put sig- engineer I I was him him in the caboose. gave saw before a a met train he he nal. “It my part sig- in front of house signal down I have. I made up time, house, engineer and then I went above the tool that a track nal walker —that at up though. naturally say something to him We ex- but not I I ahead of him. was a By along those bolt nuts amined there. all at the that the made walker —that my son, somebody I mean me and and several oth- him ‘we’ ers. We examined the bolts joints was ahead of up, palms holding (indicating each these hands my apart ahead). place pointing front home on inches about six * * * up meaning I north the tool house. Of course saw I should think the tighten something my house, in front of him when those close ahead.” was that there tightening head, those bolts he nodded wit- That the (Alvis) duty “supposed” railroad. was an He not the head was ness nod of the right authority give signals, acceptance had signal. no fur- or to This witness of the and the trainmen under no re- he met the train it were to ther testified that when spect given, signal one-quarter them. The as Fire the evi- mile south of a about shows, twenty dence creation, Tag Crossing, passed was one of the witness’ own and after cars signal prescribed by and not a him train was sounded. the whistle of government' employees,. defendant for its corroborated, main, tes- Ed Alvis signal given significance If the witness seems to be timony Virgil. it, to have attached it was trackman was safety nothing The defendant offered evidence a more than that rules 3 and 33. somewhere train and the ahead of the train- right men had the to assume that he would provides: may Rule “Trains run be obey, employment rules of and not any time, any track, at in either direc- stay moving of a on the track in front train. tion, notice, and without other than to judgment, evidence, my Wholly This necessarily having those to be informed not immaterial should have been re- operations. Employees gov- must be compelled ceived. To hold that trainmen are accordingly every erned avoid accident. exercise care signal every to take notice and observe Watchmen, trackmen, may loitering along person who rail- be urged keep sharp others are therefore a road would restriction be unreasonable protected' lookout in both directions be upon the business of carriers. against approach trains.” is, any force, reasoh it second if had it 33: Rule “Trackmen must move ato safe question subsequent negli- related passing distance from trains so as to avoid gence, as to which trial court directed a being things struck coal and other for the verdict defendant. may fall or be thrown from them. On double respect In negli- what required were the trainmen step track trackmen both tracks off gent? speed There is no as evidence to the passing, trains are when but in train; of enginemen clearing there is ho evidence that the approaching do trains not cross over exercising were or upon rea- were applies (Italics stand or to supplied.) other track. This diligence keeping lookout; sonable is straight there as well as curved track." no evidence Parker that ever discov- position peril, ered or that he did not of the the trainmen in a copy The evidence shows that a immediately step in front book Parker; of rules had been furnished to locomotive, intentionally, whether in- especially that he had been instructed in re- advertently, negligently. or spect thereto, and familiar with these liable, To hold the In defendant rules. upon cumbent to offer evidence ap- further shows evidence that justifying jury proceed to a verdict proximate telegraph poles distance between finding negligence, and to end evi was from two hundred two hundred and question dence must remove the from mere fifty feet; that the of a vibration train such speculation conjecture. St. Louis & S. as that that killed Parker can be felt one Dorman, F. R. So. 70. standing on the tracks a distance two hun- To infer from the evidence the en dred feet. keeping enough ginemen were is not lookout Thete was also evidence offered de- negligence; show it must in be further fendant to the effect that Parker stated to place ferred that Parker was discovered presence one of his children in the peril, discovery peril that the was in nurse, goodbye when he the child kissed preventive pre efforts to have taken time vent morning day death, of his that it him, striking train would child, be last time would kiss the the trainmen failed to use all the means tending and other evidence to show prevent train their command some domestic trouble between Parker and striking building an him. This is inference wife; disputed. !his this evidence upon that extends a field inference into foregoing conjecture, speculation is a statement of all the and is not mere bearing facts and Cooper circumstances permissible. attend- A. C. L. R. Co. Lumber 1 . death, upon ant Parker’s environment of 66 occurrence, causation. and its they keeping To infer a look majority opinion emphasis In must is sufficient. It further much in be given testimony Virgil that Parker was to the ferred Alvis and peril, proper respect place his brother in the lookout had kept by engineer, regard trainmen he been several reasons. The been would have and I evidence as prevented importance of no discovered time to Have death; this under same rule would first is that no the his evidence the. knowledge nothing conjecture, guesses, any short of Alvis just easy any way speculation. It is to infer with the defendant connected immediately engineer upon between him and stepped ence fire- track Parker ahead signal, sup- respect man with it would train. of the that, port a if reasonable inference McGuin nearly point Southern is case most train, supposed heard the he be it to on the McGuin, F. Ry. A. 153 C. C. track and north-bound so to the south- moved Ap 649, 651, peals Court the Circuit decided it, escape that, bound track to if the fireman Circuit, in which Fourth for the engineer him, they saw must have seen Supreme denied certio Court States United track, on him that him the or near the south-bound 61 L. Ed. (244 U. rari engineer gave signal no to warn opinion, 1373) case the and in that without fact a unusual north-bound ques Appeals on the divided were Court tion of approaching train was on the south-bound sufficiency of the evidence until track it was for him too late to es- judges negligence; dissent of the one show ing. cape. opinion quote ma from the We jority: “Running a north-bound train on the south- negligence, bound track is not evidence proposition, there was second “The employees all of the railroad' must proof negligence part of the no of is one of on the de- necessity take notice of the occasional fendant, difficulty. The train had change. Nevertheless, make the as that Miller, workman, passed Parati and another running, not the usual method of the rail- ques- occurred, when the accident company road must take notice that their depends upon their testi- tion of employees naturally will be somewhat less Lynn, engineer, mony and that of guard against on a north-bound. train run- Daniels, The fireman testified the fireman. ning track, on a south-bound due care looking side from the left out he requires greater precautions. The case is cab, walking between and saw McGuin n thus distinguished holding the cases probably tracks, he would the two have where ordinary engineer that under an conditions engineer’s struck; been he called the may apparent pos- that man assume engineer him; attention to ing blew cross- get session of his faculties will out of the signal; sight; his McGuin moved out of way approaching of an train. Therefore it applied then the brakes and was not unreasonable to hold the railroad signal; blew the alarm for he last saw McGuin company guilty case, in this within 8 or instant 10 feet of en- since it could well be inferred from Miller’s coming gine, as he was across to left testimony engineer, running that the a north- rail of the south-bound track. The bound train around curve aon that, upon speaking south-bound testified fireman track, very saw him, McGuin on or near south- he the cab and saw leaked Mc- track, gave signal tracks, him where, no till two he con- bound it Guin between the safe, sig- clearly him but he station was too late. This sidered blew the conclusion is so shoulder, ; sense, prin- his nal McGuin looked over consonant with common and the situation, recently stepped ciple has seemed been so see discussed and safe, track, Ry. where north-bound walked approaching he this court Southern stated on, straight Cook, looked back then 141 C. A. F. refer train, adjudicated con- seemed to become ence to cases seems unnec ways fused, essary. or three a sec- started two ond, south-bound across the and then darted dispose “These considerations also struck, engine and track when front position to a that McGuin’s death was due put step him one more would have by him. He risk risk assumed assumed the track the As across started clear. alarm he necessity the occasional to run trains on of tracks intended emergency signal given and the oppo going trains in the applied. brakes direction, risk assumed was site important testimony “Miller’s differs subject such trains to the limitation that only particular the alarm reasonably be be care should run says that, standing given He to McGuin. expected under such conditions. Whether him, McGuin, looking he saw sight, change was, pointed was so run as we have this train ¡passing just out of he was jury. good out, ground tributory negligence question for the There is track; the south-bound course towards say guilty McGuin was con train, ap- afterwards, immediately as the prob assuming, as he sight, before it proached, but blew ably did, north train was on the supposed signal, which was for a station Skszypczak, 225 Belt Co.v. bound track. Edsall; Springfield passed and that at after the train had contributory neg 242, 80 N. E. 115. Ill. But only signal, him, the alarm he heard recovery. prevent ligence would not emergency moment the the same Judge the District refused Miller, applied. “It true that from the con- brakes ditions his attention unobjectionable charge McGuin, more re one or surrounding him and subject quests on the of as defendant on the train and concentrated risk, sumption instruction that no signals; its the alert for assumption subject of risk was point accepted testimony differ- appellant, response of to insistence In the was not defendant But name. the under that say may from E, cited cases omission, of the recent by we instruction prejudiced for the they Supreme request, Court that States an accurate the United is defendant’s at distinguished for from case are each decision. the assumed to be MeGuin statement that and clear situation, occupation his and of his all risks failing negligence in Nixon, not due defendant’s Chesapeake R. Co. v. In & Ohio peril.” perceiving warning give his after 70 L. 271 U. S. holding 46 Ct. engaged in man a was that section justified recovery sole for The maintaining a track risk in- assumes the of negligence, there subsequent which ly of on jury negligence part oper- Ry. from on of train Southern case. See in this is evidence no failing to maintain a lookout for ators such no iin Gray, Ct. U. S. Co. v. employees along track. There were 1030. L. Ed. special compelling and circumstances for thoroughly establish- fact is one There specific warning lookout, and as after neg- guilty of ed, Parker is and that that running contrary usual while to the course upon remaining upon going ligence in transportation. of of rules in violation track south-bound Allen, Toledo, In St. Louis R. v. Western company, held he should this and L. Ed. U. S. 48 S. Ct. Davis 276 proximate his death. of cause sole the v. L. Ed. Ala. 517, ing holding work a car checker that Kennedy, 45 S. U. S. yard night in a railroad assumes the Peters, at Southern injury shunting risk of from of cars with warning, along adjoining a out on which he is at the one respectfully I dissent. therefore work, where he is familiar with the conditions and that the method of foregoing SAYRE, J., in dis- concurs court said: “In work. The of absence knowledge part place sent. on their was in a that he he liable struck where to be and oblivious Rehearing. On danger, they required vary were not switching practice customarily followed THOMAS, J. yard steps or warn in that or to take other rehearing argument application for and protect him. is There evidence sus no specific grounds support thereof in indicated allegation employees tain the that the other expressed views error saw, negligently discover, plain failed holdings opinion original and the court: negligence ‘position peril in a and tiff oblivious there (1) there was evidence of causal That ” clearly Thus was this of.’ case differenti agents “proximately defendant’s bar. from case ated at intestate”; (2) causing the death case of Atlantic Coast Line Railroad risk in- assume did not “Parker Davis, Company Adm’r, by death”; (3) juries his which he met 73 Ed. S. Ct. that of a guilty was “not which Parker leaving place safety doing a volunteer for solely proximately alone caused and con- and work, taking position and of obvious injury death”; (4) to his tributed danger where he would be struck the boom appellant was to a trial not entitled new swing the shovel made a full it “contrary jury verdict of because the path; liability. not move its held did out of no law and the evidence.” to the “ **' *' In it is observed: is this oase It these insistences how will consider due We that, Company even if clear owed the Railroad then by counsel. made any duty respect, him in this there was any motion not an insistence substantial evidence that there There is no refusing part failing its was error defendant’s to furnish that there written having place charges such as in which to work. evidence safe absolving undisputed purpose places of the en- is there were several for their which, cars, negligence. spotting gineer There was he could stood in the sub- in have jury charge, reasonably oral mission to the which were safe and well all of simple negligence questions performance adapted work, non vel operating” train, “engineer this’ or “those in which he been struck could train,” keep operating swinging lookout boom. this And the inevitable conclu may “caught have been all who the sion from the evidence is trackmen he volun unaware,” discharge tarily position of their duties and that abandoned the safe running was an “excuse for board which of whether operating signals those so he at first assumed and necessarily giving position placed a train himself in a dan extreme ordinarily prudent ‘jack-arm,’ place ger as an not furnished performance man careful cumstances” whether the should have done like cir- for the of this work and ; adapted thereto, under all the circumstances and one obvious inevitably signals failure of with the he would be struck if the taken negligence. swing failure of a made full unless constituted boom he moved lookout through Page path: thereby its 31 of record. own negligence, engineer, impossible stop as the sole cause of the when 'it was and direct accident, brought on his own death.” Thus the train. distinguished case its unusual circumstances, “Under these is clear peculiar calling facts main- place. Driggers, negligence, his own sole as the tenance of a lookout the time and brought accident, direct cause ground death, own no that there Valley Railway Company And in Unadilla liability upon which the of Com- the Railroad Caldine, v. Ed. 49 Ct. 73 L. S. pany may predicated. Compare be Atlantic 224, 232, the in vio conductor was killed Davis, supra, page Coast Line R. of Co. v. transportation lation of orders. The obser (73 210), U. S. and L. 49 S. Ct. phrase vation Mr. of the Holmes is: “The of Justice cases cited.” statute, ‘resulting part,’ in in whole or interpretation and admits some latitude of distinguishable These cases each are likely given is mean to be somewhat different from that before us. And the instant case by Certainly ings re different readers. the negligence within the rule the not that where parties is be taken into lation between the to employee injury, proximate of an of cover under is the sole cause It seems to us that or one account. Caldine permitted he will not to his be re as in shoes is entitled who stands Employers’ Liability Federal the Company employed against him Railroad the 51-59). (45 §§ Act USCA L. N. R. Co. v. any say was that the collision due Fleming, L. & N. R. He in he was but himself. was one command. He Jacobson, obeyed expected obeyed and be as 565; Skaggs, Illinois Cent. R. Co. v. 240 U. mechanically pulling as if his the bell it had L. Ed. 36 S. Ct. opinion self started the train. not not to have done In our can he undisputed say Under the decisions and evi- ought be heard subordinate dence, the violation defendant’s rule ordered.” what he by contributory negligence— the —his In the case Atlantic Coast Rail- Line proximate was not the sole and cause of his Driggers, U. road Co. 49 S. Ct. injury and death. And such is the result injury 73 Ed. the manner of the by whether tested the state or federal deci- by stated the thus court: sions. “Driggers employed by had been the Rail- in The insistence motion for a new Company years, for road about five and “contrary was that trial the verdict was about six months had been a member of a law”; specific ground the there was no .that injured switching by stepping crew. He was contrary the verdict rendered was in the engine footboard switch off the given while it charge the court C. structions striking engine in matter, original motion the hearing, was local respects The now to be tioned in brief filed on passenger passing along train that was considered, incidentally men * * * adjacent track. of date November urged rehearing. now in brief on undisputed Drig- “The evidence shows that original matter context brief required gers had no which him to dis- is: engine time, mount from but although switch at that supposed engine, remain on by engineer so-called “The optional get it was for him to off and- witness Alvis a half a mile and or two miles throw the switch. down road from where the oc- accident curred, bearing has as no on the case we will hand, undisputed “On the other evidence show Alabama authorities later. The passenger train, shows that the which was engineer negli- Court said that was not time, running few minutes behind and was ** * gent. hour, at least 35 to 50 miles an had a engineer right way “As stated was exonerated of and unobstructed clear south-bound line. The on the negligence p. Charge all the Court. engineer on subsequent negligence count, n lookout 38 and the Court ahead, signals point had blown at a charged out.” 2,000 north, again about feet to the before reaching accident; the scene and the This sufficient insistence engine, present question automatic bell' which had he motion brief to motion, up ringing continuously being set conflict instructions and now rehearing. urged conceded, to the time accident. There was no ob- If -it be with- deciding, question struction whatever on the line present- ahead. Al- out though engineer engine charge presented saw correctly the switch C ed southerly in a question law, about to enter northbound direction on the it will be noted that line, nothing main there was request trial court refused defendant’s any member general indicate attempt of its crew would for affirmative instructions as to lines; negligence to dismount between the two count and as to the vel non of Driggers suddenly engineer (refused charges struck the side the the as to the enr engine pilot, position gineer, operators, employees A, D, E, behind the where are F, G, not and cofild not have been seen and as imposed jury together 42); fireman certain submitted to and the court and the deceased, jury might in duties to rea of such vel non sonably charge infer There was rendered. under count one. the oral jury question as to fell into error no doubt court fireman, and was no therefore there error C, having giving charge foregoing charges after and refused refusing charge D for reasons we have H, giving charge indicated, ruling and no error neg subsequent application having latter charges dissenting opinion indicated in the ligence 2, which count was elimi count Mr. ANDERSON. Chief Justice in defendant’s written several of nated structions rehearing judg- That denied is forms. several writer, GARDNER, J., ment and the BOULDIN, J., stated, POSTER, rehearing J. application further request urges error of defendant’s for refusal Mr. Chief Justice ANDERSON charge general affirmative for the grounds: J., BROWN, grounds respec- dissent on the (1) of evi there was failure That tively indicated. employees negligence defendant’s dence (in charge engine) the Federal under of the KNIGHT, J., sitting. not Liability Act; (2) Employers’ Parker assumed extraordinary ordinary risk, the whether BOULDIN, (specially concurring). J. risks, negligence de those due the I have reached the conclusion that the they employees, known fendant’s running of the north-bound train on the Case, appreciated by.Parker. Then Nixon the track south-bound on schedule a the time of S. Ct. 70 L. Ed. 271 U. regular train, regularly north-bound urged position af taken to the the as for track, presented ran on the north-bound been firmative facts have instruction. persons might condition of who original hearing. on heretofore We have stated the rightfully track, be on south-bound in the Nixon Case was shown that the cluding trackmen, that ca'nnot be as said spe parallel, by the not reason of absence of duty a matter of law no on the that, controlling cial and circumstances —as keep trainmen to a lookout for deceased. plaintiff’s discharging intestate was while duties on the regard any signal given Without the en charge in track those the gineer, duty keep I conclude a the look timely engine warning of the due out under the circumstances one for the a presence being immediate of some human on jury. duty, rounding Such while ex curve ahead, this de the nied notice track tending place to within some 65 feet of the by enginemen, proceeded who with the injury, during engineer which time could contrary signals, us a out ual course of travel special lookout or ahead, not see the track devolved on fire thereon and under There man. evidence that is-some deceased facts, and material circumstances was work on a at track for such time that injured Parker; a due lookout proper lookout would have discovered enginemen timely signals part danger, calling prompt preventive for meas (no doubt) averted the would have collision. ures, giving signal. Hence, warning such as a part This fireman vel non on made due care refusing conclude there was error in I no jury engineer question, ap a as charge exonerating the fireman. plied to the facts of the case. my I desire to concurrence limit to what dissenting opinion, response In said. is here say point appellee’s at which we will intestate was killed was shown that the evi ANDERSON, C. J. a short been distance a dence to have northerly I think that this should be case reversed a direction curve upon point which seems not to been have pro the direction which train was foregoing opinions. in either of the considered engineer ceeding; could and that complaint, finally amended, as con- position from his curve see the deceased until counts, 1 and 2. tained two Count was rounded, on the fire one charged given charge out both written engine man’s side could have seen the oral instructions the trial court. and The ant’s and considerable dis deceased a sufficient jury also instructed the defend- warning; given him effective tance to charge (c) could engineer when had been notified and that th.e recover under count amended that some was on the track ahead of the one any complaint account gave train, a caution that whis This,. engineer. effect, part of the inability .the think tle. We account of the engineer from the case eliminated verdict gence charged and the engineer along ahead to see the track only negli- could be referable distance, and such ob a sufficient fireman or some other servant open to one on fireman’s servation side of operation with the of the train. sig engine, caution defendant, by been notice its nal should have to the fireman refused written away sought place, charge (d), distance from the all to exonerate sufficient fireman any judgment negligence, count 1 ed and the of affirmance set aside complaint, charge should and that and this the cause should and re- be reversed amended argued given, manded. and its refusal have been upon appellant’s and insisted error page BROWN, J., 58. adhering brief. See original while to his opinion, also concurs these views. theory upon only fireman which the Tbe possibly charged with could be keep It a lookout. for a failure to would be may ordinary questionable, under condi- keep engineer tions, had to con- whether the (137 669) opinion point, and the lookout this stant of KINNEY et al. POLLAK et al. theory L, THOMAS, proceeds tbe 6 Div. 820. been done because of should have circumstances, is, special tbe Supreme Court of Alabama. running warning train was and the bad against Oct. 1931. traffic, going is, north on a tlie This, however, did not south-bound track. impose Rehearing Denied Dec. duty upon necessarily fireman keeping a lookout. charge place, In the first engine, of the fireman is, keeping sense,1 in a watch seconda as to upon ry not to do so unless he and he is called doing so, not that tbe or knows cannot do so, places where a lookout is even nothing required, and there is record required fireman was show that to keep point, this lookout at the en doing gineer so or could do was not so. THOMAS, opinion J., attaches While much importance signal given the en meaning gineer importance with connection fact same running against traffic, is, go train ing tracks, north the south-bound there is slightest tbe evidence that the fireman not saw any signal knowledge what appears also en ever of same. It recognition gineer blew the whistle ease, and, was, if such sense, notice fireman a engineer on the lookout. prop- As to whether or the trial court any negligence erly part on the eliminated engineer, we are not called decide, appellant as it was favorable to the and, having case, issue removed this from the highly important the trial cóurt requested the defendant’s should proof charge (d) any as the fails to show part and, only of the fireman engineer eliminated, rational conclusion is that the verdict plaintiff was based on tbe conduct of tbe fire-

man. hand, On the other had the case, charged

been out of tbe the defendant requested charge still entitled to have (d) given complaint as the did not confine the engineer, but to tbe defend- generally ant’s -officers servants which included the fireman. rehearing grant-

I think that the should be 39 J. notes distance, time, place. 1839; and for a and Neg. reasonable 18; Thompson 1 §§ 2 on special under the circumstances shown 350; Supp. pp. And Labatt, R. § 6 O. Perm by duty care non 1916F, 555-560, the evidence of due vel 4487, 4488; L. R. A. 564-566. jury. plaintiff The was for the was evidence bearing analogy And question to our authorities undisputed positive giv- and as to notice special Lou are: circumstances of peril; was en edged intestate’s that it acknowl- of Williams, Adm’r, R. & N. Co. 199 isville v. engineer. by and The understood Ala. 74 So. an action silent evidence for defendant was as to wheth- employee of a the death railroad while on the performance engineer er or not the and under- received bridge track a in on railroad ahead, specific warning stood of Skotzy, duties; R. 196 A. Co. G. v. engineer and as to and fire- silent what a stood on Ala. 71 So. where fireman doing and man the condition and needs adjacent work, to an an track order and warning engine, time other controlling cars with no one crew switched some point R. collision. Central of Ga. Co. v. them, ran over 654; Graham, Ala. 119 So. injured him; & N. R. Thorn Louisville Skotzy, supra; N. A. R. v. L. & G. S. R. Co. ton, Ala. where Thornton, Thompson supra; R. Co. injuries attempt employee an ing sustained ap Neg. 537, 1839, quoted cited with § discharge couple du cars in the of his proval Williams, Ala. L. & N. R. Co. v. Morris, ; R. ties L. & N. 239, 241, 248, Co. Ala. R. 382; T. & N. R. 74 So. Alabama 933, an 60 So. action for Huggins, Labatt who, employee, at work on death while Servant, § Master tracks, by was struck a one defendant’s taking special circumstances The previous locomotive killed after alarm general trackmen case rule —that given parties; by third Davis had been lookout, were not ings, warn entitled the usual 191, 104 Sorrell, So. 397. 460) signals (1) (39 C. J. —were: engaged undisputed That in by intestate was moment evidence showed de fishplate fastening continuously plain (this clearly a shown view of ceased the from the Alvis, fireman, engine, the evidence of Mrs. that wife side workman); (2) appellant’s engine got a section em within half a time the of mile ployee charge engine up including been time he had of deceased was by locomotive; presence warned of the immediate of intestate stricken and there track, undisputed and this on the notice was not denied evidence that by defendant, by timely peril and Eddie established evidence usual information of .and Virgil Alvis; (3) so, train for a time and dis ahead. tance, If reasonable special containing thereafter, a duty north-bound train such it became the strawberry cars, that had been diverted give employees to maintain a lookout and dispatcher, train order of the was at argues danger signals. defendant with along proceeding main time a south-bound support this, out evidence the fire track same as if on the schedule north line firing engine, time such man at the track, train on such due north-bound bound all him fact would relieve re time, reasonably expected at such duty spect maintain a lookout and usually proceeded parallel other However, no such warn deceased. there was only apart. track few feet support argu pleading evidence ment. And had there evidence, been order division follows conflicting premises dispatcher: duties in what the train ford to Cullman. years. Alabama, against which direction track to Cullman.’ right the trains duties. Train written south “This “ Cullman. ‘Order No. over bound As original are, me while opposing dispatcher I have been No. 72 trains are order opposing Trafford is a their No. 72 trains on was made it is was moved over the transit numbers running in, trains from my discharge engine dispatcher south bound point at all times Cullman, me and where south know Traf- has walker —that my him. in such north, was shown to be way what kind of motion examination the witness was swered, this action there was no error. The witness did, ahead what (indicating) I matters say as follows: him. trackwalker —that motion way I made * and business. the trackwalker went.” competent * * did “What did pointed signal you make, you I something made a made -somebody at the ahead — asked and And you say you experienced there, let us see ahead pointed cross- an In

Case Details

Case Name: Louisville N. R. Co. v. Parker

Court Name: Supreme Court of Alabama

Date Published: Jun 27, 1931

Citation: 138 So. 231

Docket Number: 6 Div. 471.

Court Abbreviation: Ala.