121 So. 722 | Ala. | 1929
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *240 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *242 This is an action for damages under the Federal Employers' Liability Act (45 USCA §§ 51-59) for the death of a switch engine foreman, of appellant, killed in the yard at Mobile.
Objection is made to the complaint that it fails to show that decedent was not a trespasser, or was not at a place where defendant did not owe him the duty of ordinary care not to cause his death, and that the complaint does not show a breach of duty. The case of American Ry. Express Co. v. Reid,
The evidence tends to show that deceased was run over by a cut of 10 cars being pushed along the main switching track of defendant to the Louisville Nashville yard to enter into a train for transportation by the Louisville Nashville. One such car was loaded and destined, and was starting on its journey in interstate commerce. This was sufficient to make the movement one in such commerce. Alabama Great Southern R. Co. v. Skotzy,
Decedent had been engaged in checking the cars which were in this cut. The movement *245 consisted first in an assemblage of them on the main switching track, from a track eastward of it, and intersecting it on the north, by two switching movements. Decedent was last seen between the two tracks checking the cars as they stood on the east track. After the cut was made up to move, the engine was on the north and facing south, putting the engineer on the west side. An employé (McKenna, the yard foreman) was stationed on the ground on the west side to signal when ready. One Stewart was on top of the car next the engine, and another employe (Holder) was at the rear end. The evidence tended to show that Holder walked around the south end, and partly up on the other side; McKenna saw his legs under the train; that Holder did not see deceased, went back around on the west side, and climbed on top the rear car, which was a gondola or coal car; that McKenna from his position on the ground looked at the cars and gave a signal to Holder for the cars to move; Holder relayed the signal to Stewart, and he gave it to the engineer, who pushed the cars down the track and on to the Louisville Nashville interchange track, not knowing of an accident until he reached said track. But the cars, as the evidence tends to show, just as they started, ran over deceased and cut off his head, killing him instantly. This was done apparently by the gondola car, third from the south end; all three of which were gondolas. No one admits seeing the accident, but the evidence tends to show it was on the west rail, next to where McKenna was standing, who testified he looked at that point and saw no one. It is only an inference as to what deceased was doing, or how he got under the cars.
Defendant claims the affirmative charge, first, because such facts do not show that deceased was engaged under his employment in interstate commerce at the time, and, second, because no negligence is shown in operating the cars, proximately causing the accident. We cannot agree with appellant in either respect. Deceased was foreman of the switch engine, and it was his duty to check and inspect the cars before they left. He was last seen engaged in that duty, and his record shows he had not finished it. The fact, even if there were drawn an inference to that effect, that there was a temporary lull in respect to this work, would not necessitate a finding that he was not engaged in such employment. Alabama Great Southern R. Co. v. Skotzy, supra. But there was no evidence of a temporary lull or that he had for one moment ceased to engage in his work about said cars. If he was negligent in going under the cars, or climbing on them, this does not necessarily defeat a recovery, or entitle defendant to the affirmative charge. Southern R. Co. v. Peters, supra; Southern R. Co. v. Fisher, supra; Alabama Great Southern R. Co. v. Skotzy, supra. Of course if deceased at the time of the accident was outside the scope of his employment in connection with said interstate movement, he cannot recover. Louisville
N. R. Co. v. Pettis,
We also think that the question of negligence of defendant's servant McKenna or Holder in not seeing the dangerous position of deceased, or, if seeing his danger, in giving the forward signal, was for the jury. Deceased was necessarily under the cars, or on one of them or between them at the time; and McKenna testified he could see the entire cut. Both McKenna and Holder had been looking about and under and between the cars, and McKenna was doing so when he gave the signal. The question of negligence was therefore for the jury, and neither party was entitled to an affirmative instruction, though they both claim that it was due them, respectively. We do not think the circumstances causing the death of deceased are too vague to submit to the jury the question of negligence. The jury could infer that deceased was killed by the third to the last car, on the west rail, on the side next to McKenna; that he was performing some duty of his employment as to these cars; that, though McKenna swears he did not see deceased as the cars started, he also says he could see to within 10 feet of the end, and could have seen deceased unless he was behind the wheels. He then gave the forward signal to Holder who had been around to the south end of the cars, and whose legs under them McKenna saw. Did they see deceased, if not, why not? We do not think the court erred in charging the jury that, before giving an order to move the cars, due care should be observed to see and know that no person engaged in the movement was in position of danger. Southern R. Co. v. Shelton,
Appellee also insists that negligence is affirmatively shown in moving the cars without the air brakes being connected. It was shown they were not connected to the cars, but that the engine was well equipped in that *246
respect, and that they were in good condition. Appellee claims that the cars being moved constituted a train in the meaning of section 1, title 45 (Railroads) of U.S. Code (
Appellee also insists that there was negligence in the operation of a car by the failure to promulgate certain rules as to making of inspections to determine the dangerous position of employés. Such failure, if true, is not negligence in the operation of cars. It is customary to lay a breach of such duty in the complaint. Sloss-Sheffield Steel Iron Co. v. Capps,
Charge 18, if not otherwise faulty, is argumentative and misleading.
Refused charges 30-33 invade the province of the jury.
Refused charge 38 was not applicable to the issues made by the pleadings in the case, and was abstract.
By charges 9 and 17, given for appellee, and in his oral charge, the court instructed the jury that an element of damage was such accumulations of decedent, derived from his earnings, as his dependents may have inherited at his death, had he not been killed, in addition to such benefits as they would have received from him during his lifetime. By refusing charge 10 for appellant the court declined to charge the reverse of this proposition. Our conclusion is that this was error.
In the case of Louisville N. R. Co. v. Stewart,
In the case of Dooley v. Seaboard Air Line R. Co.,
We are cited by appellee to cases which we think do not apply. Tutwiler Coal, Coke Iron Co. v. Enslen,
But the federal act only applies to dependents. The federal cases cited by appellee are not in conflict with the idea we have expressed — Louisville N. R. Co. v. Holloway,
Charges 17 and 9 are bad, for the further reason that they do not take into account any annual depletion of the principal of *247 the fund. It must be such an amount as will each year, bytaking a part of the principal and adding it to the interest, yield the required amount.
In ascertaining the present cash value of future benefits of which the beneficiaries were deprived by the death, adequate allowance must be made for the earning power of money. While our case of Reiter-Connolly v. Hamlin, supra, assumed that, so far as the Alabama statute was concerned, the interest basis should be the legal rate of 8 per cent., a different rule has been fixed by the United States court. The rule there fixed is that the present value of money is dependent upon the present earning power of money. This may not be the legal rate. The future earning power cannot be foretold, and therefore the present must be the basis. Chesapeake O. R. Co. v. Kelly, supra; Chesapeake O. R. Co. v. Gainey,
Charge 15 1/2, refused appellant in this connection, is in the language of an instruction held good in Gulf, C. S. F. R. Co. v. Mosler,
In charge 14, given for appellee, the court instructed the jury that, if they find for plaintiff, the amount of damages should be ascertained as of a date immediately after the appointment of an administrator, and, to the amount so found, interest at 8 per cent. per annum should be added from the date suit was filed to the rendition of their verdict. This question has been considered in some of the state courts, but, we find none in the federal courts. In Bennett v. Atchison R. Co.,
Given charge 2 for appellee is confusing, and not a clear statement of the rule prescribed for measuring the damages. On another trial the charge ought to be refused. The court should not use any definite figure indicating the life expectancy of deceased. The mortuary table is only evidence, but does not furnish a rule.
Charges 3 and 15 we think should not have been given. The negligence referred to was not confined to the operation of the cars as alleged in the complaint, and appellee was contending for liability based on other acts of negligence — such as the failure to promulgate rules, and the failure to make air connections. It may be that such charges under some circumstances would not be injurious, as where only one theory of negligence is claimed in the complaint and in the argument.
Charges 5 and 10, given for appellee, we think, should not be the predicate for error.
The circumstance which occurred during the progress of the trial, and was the predicate of a motion to withdraw the case from the jury, and, after verdict, for a new trial, need not be considered, as it will probably not occur on another trial.
For the errors pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.
Addendum
We cannot agree with appellee on rehearing that interest before judgment is recoverable on the amount of the damages fixed by the jury. We think the Federal Employers' Liability Act (45 USCA §§ 51-59) precludes us from so agreeing, assuming that one element of the claim may not sound in damages merely. Such act is paramount and exclusive, and the defendant's liability cannot be extended by any state statute or rule of construction. St. Louis, S. F. T. R. Co. v. Seale,
The Supreme Court of Iowa, in the case of Bennett v. Atchison Ry. Co.,
"In no event is the plaintiff entitled to recover interest on her unliquidated demands before judgment is entered on those demands. If there is such a thing as an unliquidated demand, the claim made under this statute is essentially so. The amount plaintiff, as widow, is entitled to recover is such sum as the Jury finds, when it comes to consider the whole case, is fair compensation to the plaintiff for the pecuniary loss which she sustains by the death of her husband, and that is measured by a review of the whole field of probabilities, involving the expectancy of the husband, the expectancy of the wife, the husband's earning capacity and ability to contribute, the probable amount he would contribute, the times when such contributions would be made, the amount and such other facts as tended to show the probable pecuniary loss to the wife as a proximate result of the husband's death. It will be noted that the Federal Employers' Liability Act makes no provision for interest. The authorities on the question here submitted are but few. It was directly held that interest is not allowable in Norton v. Erie Ry. Co., reported in
Where damages for the destruction or injury to property have an ascertainable money value it is proper to add to the damages interest from the date when the injury was done. Atlanta B. Air Line Ry. v. Brown,
Another principle is that interest is not allowed on damages arbitrarily fixed by statute in the nature of a penalty, and not intended accurately to measure the compensation or punishment for which it is awarded. Jean v. Sandiford,
Under the Alabama law, physical and mental pain and suffering are not recoverable; whereas under the federal act they are recoverable in the same action with damages for financial loss by dependents, if there was conscious suffering by deceased before his death on account of the injury inflicted by defendant. Birmingham Belt R. Co. v. Hendrix,
There could be no contention, we think, but that the claim sounds in damages merely, and interest is not recoverable when physical and mental pain is an element. 17 C. J. 820. In the instant case there is no claim for such pain. In view of the many cases in Alabama under the state Employers' Liability Act, and that in none of them was the subject of interest referred to or recovered, so far as we know, and the statement of the nature of such claim in Nevers Lumber Co. V. Fields, supra, and what appears to have been the uniform application of the act in this respect, we feel that this court should not apply to the federal act a different construction, when no other court has done so, though we fully recognize the force of the argument that, in cases where there is no claim for pain, the law furnishes the formula for ascertaining the damages, and fixes the amount when the *249 jury finds the facts upon which the formula may operate, and the computation made. The authorities on this subject, as applied to damages in the federal act, are very few, and we cited all we could find in the first opinion, and no others have been referred to in briefs.
But we feel, in line with those cases, as we stated before, that, as there is no provision for interest by the federal statute or court decision, and that federal law and federal court decisions are paramount and controlling in this cause of action, and as interest is a creature of statute or judicial construction, or contract (Atlanta B. Air Line Ry. v. Brown, supra, page 619 of 158 Ala. [48 So. 73]), liability for interest before judgment may not be extended to damages under the federal act, by state statute or judicial construction by state courts.
For the foregoing reasons, we are constrained to overrule the application of appellee for rehearing. We also, without further discussion, decline to modify the opinion in the respect for which appellant has applied.
Application for rehearing overruled.