77 So. 905 | Miss. | 1918
delivered the opinion of the court.-
This is an appeal from a judgment against appellant in favor of appellee for damages alleged to have been sustained by him because of an injury received at Sheffield, Ala., while in appellant’s employment, by reason of the negligence of a fellow servant.
The declaration alleged that appellant was engaged in operating a railroad though several states, and that its business was almost entirely of an interstate character, that appellee was a member of one of appellant’s bridge gangs, and on the occasion in question was injured while unloading bridge piling belonging to appellant and shipped from Meridian, Miss., to its bridge foreman at Sheffield, Ala., setting out. at great length the manner in which the injury occurred, and charging that it was attributable to the negligence of the foreman of the bridge gang, under whose direction the piling was being loaded, and who had the right to direct the manner in which appellee should do his work.
Appellee’s contentions are: First, that be. was engaged in interstate commerce at tbe time of bis injury; and, second, if be was not so engaged, that he is entitled to a recovery under tbe Employers’ Liability Act of Alabama.
Appellee’s first contention is ruled by Railroad Co. v. Harrington, 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 94, and Railroad Co. v. Barlow, 244 U. S. 183, decided May 21, 1917, 37 Sup. Ct. 515, 61 L. Ed. 1070, from which it appears that tbe interstate movement of the car here in question bad terminated before appellee attempted to unload it, and that, while so doing, be was not employed in interstate commerce.
In support of the second contention it is urged by counsel for appellee that, while tbe declaration, which contains only one count, states a . cause of action under tbe Federal Employers’ Liability Act, it also, treating the allegations relative to interstate commerce as surplusage, states a cause of action under the Alabama Employers’ Liability Act, and that if tbe evidence fails to show that appellee was engaged in interstate commerce at tbe time be was injured, nevertheless the judgment should be affirmed, for tbe reason that be is entitled to a recovery under tbe Alabama statute.
If these statutes were identical, so that tbe pleadings could have presented' tbe same issues under tbe one as under tbe other, it may be that this contention would not be without merit; but, as pointed out by tbe supreme court of Alabama in Railroad Co. v. Carter, 195 Ala. 382, 70 So. 655, Ann. Cas. 1917E, 292, they differ materially, in that under tbe Alabama statute contributory negligence may be pleaded in bar of tbe action, while under tbe. federal statute it can be pleaded only in mitigation of damages.
Reversed and remanded.