Louisville N. R. Co. v. Parker , 223 Ala. 626 ( 1931 )

The authorities are agreed that in cases brought under the Federal Employers' Liability Act, the plaintiff has the burden of showing by evidence that justifies the jury in proceeding to a verdict, that the defendant, its officers, agents, or servants, were guilty of negligence which in whole or in part proximately resulted in causing the injury and death of the employee. Illinois Central R. Co. v. Johnston, 205 Ala. 1,87 So. 866: Seaboard Air Line R. Co. v. Horton, 233 U.S. 492,34 S. Ct. 635, 58 L. Ed. 1062, L.R.A. 1915C, 1, Ann. Cas. 1915B, 475; Toledo, St. L. W. R. Co. v. Allen, 276 U.S. 167,48 S. Ct. 215, 72 L. Ed. 513; Southern Ry. Co. v. Gray,241 U.S. 333, 36 S. Ct. 558, 60 L. Ed. 1030; Delaware, L. W. R. Co. v. Koske, 279 U.S. 7, 49 S. Ct. 202, 73 L. Ed. 578; Atlantic Coast Line Ry. Co. v. Driggers, 278 U.S. 587, 49 S. Ct. 17,73 L. Ed. 521. And negligence cannot be inferred from the fact of the injury. Toledo, St. L. W. R. Co. v. Allen, supra.

The complaint on which the case was tried consists of two counts, the first ascribing the injury and death of plaintiff's intestate to the negligence of the defendant's servants or agents engaged in operating the train; and the second count ascribed his injury and death to subsequent negligence — negligence after the discovery of peril.

The pleas were the general issue, assumption of risk, and contributory negligence pleaded in repression of the damages. The court directed a verdict for the defendant on the second count of the complaint, and submitted the case to the jury on the question of simple initial negligence.

The defendant now insists that the court erred in refusing to direct a verdict on the other count, its contentions being: (1) That there is an absence of evidence showing or tending to show that the trainmen were guilty of negligence; (2) that the evidence shows that the negligence of said intestate is the sole proximate cause of his death; and (3) that the evidence shows that he assumed the risk from which his death resulted.

The facts developed by the evidence are few and without material conflict. The plaintiff's intestate, Sam Parker, on Sunday, May 6, 1928, while engaged in the work of a trackwalker for the defendant, was run upon and killed by a locomotive pulling a train of forty cars upgrade. The railroad was doubletracked, and the train, as provided by the rules of the company, with which said intestate was familiar, was moving north on the south-bound main in obedience to the orders of the train dispatcher, because of some obstruction on the north-bound main. The train was a special, carrying cars loaded with strawberries, and was running on the time of regular train No. 6. Parker was fifty-nine years of age, an experienced trackman, without infirmity of hearing or sight, and was familiar with the tracks, roadbed, and schedules, having been engaged in this work for two or more years.

So far as appears in the evidence, no one saw Parker at the time he was stricken, or for four or five minutes previous thereto. The last person to observe him before the accident was Mrs. Belle Alvis, the wife of the section foreman, who testified as a witness for the plaintiff. She testified:

"Just before the train struck Mr. Parker I was in the house sitting in the door. I could see out of the door from where I was sitting. I saw Mr. Parker just a little bit before he was struck. The last time I saw him he was going on, he had his wrench and pick, and we was going on up the railroad the last I saw of him. I saw him tightening bolts there near my house. After he was hit I looked at the bolts between the place where I saw him at the time, and the place where he was hit. We all did that. You could see where he had been tightening them. After he was hit I saw where something had turned there in the ground, at the place where he was tightening the bolt when he was struck. That was right at the rail joint. The bolts there had been tightened. * * * I saw some impression when this man was hurt on the ground * * * right at the joint. I did not see where he tightened any beyond that place. I did not hear the train blow before it struck Mr. Parker. My hearing was good at that time and is good now. I have been living there sometime, this coming fall it will be 12 years. * * * Well, really, I don't know — standing at the place where the man was struck — how far I can see the fireman coming north on an engine. I am no judge of distance. I counted the telephone poles the other day at the request of Mr. Denson. I don't know that I could say just now how many there are. My best recollection, there is (are) 12 I believe, the best I can remember. I know that the fireman rides on the left side of the engine. * * * I did not go there right up to where this man was hurt. The train was between me and him when he was hurt, and I did not see the train hurt him. I had not seen him for some four or five minutes before the train hurt him, something like that. Between the time I had last seen him, and the time that he was hurt, there was an interval of four or five minutes. When I last saw him he was on the west rail of the south-bound track, and at this time he was almost in front of the tool house. When he got to the tool house, he went out of my sight. The place where I saw the disturbance on the ground was the fourth joint north from the tool house. I am sure of that. I went up there after they had taken Mr. Parker away. I didn't go right up to him at all while he was there. I did see him after he was hurt, but I was not close to him. I got over on the same side of the track he was on afterwards. The train pulled up to pick him up and I went across over there on the other side after the train had pulled up. I saw Mr. Parker when they were putting Mr. Parker in the caboose. I saw him before they put him in the caboose. I was down in front of my house part of the time, and then I went up above the tool house, but not up to him though. We naturally examined all those bolt nuts along there. By 'we' I mean me and my son, and several others. We examined the bolts at each of these joints from a place in front of my home on up north of the tool house. Of course I saw him tighten those in front of my house, and when he was tightening those bolts he was facing south. In other words, when I saw him, he was tightening the bolts, and he was facing the direction from which the train was coming. The bolts I saw him tightening he was facing south. I saw him tighten several that way. He had been over to my house and when he left my house I heard this train coming. When he left my house I heard the train pulling this grade. It was making a lot of noise and I heard it then continuously on up to the time the accident occurred. Mr. Parker's hearing was all right as far as I know. I had seen him every day over a period of some four or five years, and his hearing was good so far as I know, it was good.

"Q. Did he tell you that he heard the train coming? Yes, sir; I asked him to sit down — my husband was there, and naturally I asked him to sit down, and he said 'No,' he would go across the track before the train blocked it. He heard the train coming, he was bound to have heard it. * * * The accident occurred on Sunday. Mr. Parker had been track walking along at that place for a good many years. I could not tell you just how many years, but it had been a good many. I don't know whether it has been as much as two years. I don't know how long he had been a track walker. * * * The section houses and tool house set there on the east of the track and on the curve. Back south of the tool house there is a curve, and it is up grade. * * * The north bound track was between my house and the south bound track. * * * No. 6 was due then, north-bound train. * * * This track, the south-bound track where Parker had been working, was on the other side of the north-bound track from my house and he said he wanted to get across before the train blocked him."

Virgil Alvis, twenty-three years old, a witness for the plaintiff, testified that he worked on the section, and on the day of Parker's death he was not on duty, but was walking down the railroad track for pleasure; that he saw Parker about a mile south of where he was killed; that Parker was then walking the south-bound main going north with his tools on his back; that about twenty or thirty minutes thereafter he met the freight train that ran upon and killed Parker; that it consisted of the locomotive and about forty cars, and was pulling the grade; that when he met the train he gave the engineer a signal. "It was a signal I have. I made a signal at the engineer that a track walker — that there was something ahead of him. I say I made a signal at the engineer that the track walker — that somebody was ahead of him (indicating by holding his hands up, palms about six inches apart and pointing ahead). * * * I should think the meaning of it was that there was something close ahead." That the engineer nodded his head, and witness "supposed" the nod of the head was an acceptance of the signal. This witness further testified that when he met the train it was about one-quarter of a mile south of Fire Tag Crossing, and after twenty cars passed him the whistle of the train was sounded.

Ed Alvis corroborated, in the main, the testimony of Virgil.

The defendant offered in evidence safety rules 3 and 33.

Rule 3 provides: "Trains may be run at any time, on any track, in either direction, and without notice, other than to those necessarily having to be informed of the operations. Employees must be governed accordingly and exercise every care to avoid accident. Watchmen, trackmen, and others are therefore urged to keep a sharp lookout in both directions and be protected against the approach of trains."

Rule 33: "Trackmen must move to a safe distance from passing trains so as to avoid being struck by coal and other things which may fall or be thrown from them. On double track trackmenare required to step off of both tracks when trains arepassing, but in clearing approaching trains do not cross overor stand upon the other track. This applies to straight as wellas curved track." (Italics supplied.)

The evidence shows that a copy of the book of rules had been furnished to Parker; that he had been especially instructed in respect thereto, and was familiar with these rules.

The evidence further shows that the approximate distance between telegraph poles was from two hundred to two hundred and fifty feet; that the vibration of a train such as that that killed Parker can be felt by one standing on the tracks a distance of two hundred feet.

There was also evidence offered by the defendant to the effect that Parker stated to one of his children in the presence of the nurse, when he kissed the child goodbye on the morning of the day of his death, that it would be the last time he would kiss the child, and other evidence tending to show some domestic trouble between Parker and his wife; but this evidence was disputed.

The foregoing is a statement of all the facts and circumstances bearing and attendant upon Parker's death, the environment of the occurrence, and its causation.

In the majority opinion much emphasis is given to the testimony of Virgil Alvis and his brother in respect to the signal given to the engineer, and I regard that evidence as of no importance for several reasons. The first is that there is no evidence that the engineer had any knowledge that Alvis was in any way connected with the defendant railroad. He (Alvis) was not on duty and had no right or authority to give signals, and the trainmen were under no duty to respect them. The signal given, as the evidence shows, was one of the witness' own creation, and not a signal prescribed by the defendant for government of its employees. If the signal be given the significance the witness seems to have attached to it, it was nothing more than that a trackman was somewhere ahead of the train and the trainmen had the right to assume that he would obey the rules of his employment and not stay on the track in front of a moving train. This evidence, in my judgment, was wholly immaterial and should not have been received. To hold that trainmen are compelled to take notice and observe the signal of every person who may be loitering along the railroad would be an unreasonable restriction upon the business of carriers.

The second reason is, if it had any force, it related to the question of subsequent negligence, as to which the trial court directed a verdict for the defendant.

In what respect were the trainmen negligent? There is no evidence as to the speed of the train; there is no evidence that the enginemen were or were not exercising reasonable diligence in keeping a lookout; there is no evidence that Parker was ever discovered by the trainmen in a position of peril, or that he did not step immediately in front of the locomotive, whether intentionally, inadvertently, or negligently.

To hold the defendant liable, it was incumbent upon the plaintiff to offer evidence justifying the jury to proceed to a verdict finding negligence, and to this end the evidence must remove the question from mere speculation and conjecture. St. Louis S. F. R. Co. v. Dorman, 205 Ala. 609, 89 So. 70.

To infer from the evidence that the enginemen were keeping a lookout is not enough to show negligence; it must be further inferred that Parker was discovered in a place of peril, that the discovery of peril was in time to have taken preventive efforts to prevent the train from striking him, and that the trainmen failed to use all the means at their command to prevent the train from striking him. This is building an inference upon inference that extends into a field of mere speculation or conjecture, and is not permissible. A. C. L. R. Co. v. Cooper Lumber Co., 219 Ala. 484, 122 So. 661.

To infer that they were not keeping a lookout is not sufficient. It must further be inferred that Parker was upon the track in a place of peril, and if a proper lookout had been kept by the trainmen he would have been discovered in time to have prevented his death; this under the same rule would be nothing short of conjecture, guesses, or speculation. It is just as easy to infer that Parker stepped upon the track immediately ahead of the train.

The case most nearly in point is Southern Ry. Co. v. McGuin, 153 C.C.A. 447, 240 F. 649, 651, decided by the Circuit Court of Appeals for the Fourth Circuit, in which the United States Supreme Court denied certiorari (244 U.S. 654, 37 S. Ct. 652,61 L. Ed. 1373) without opinion, and in that case the Court of Appeals were divided on the question of the sufficiency of the evidence to show negligence; one of the judges dissenting. We quote from the opinion of the majority:

"The second proposition, that there was no proof of negligence on the part of the defendant, is one of difficulty. The train had passed Parati and Miller, another workman, when the accident occurred, and the question of negligence depends upon their testimony and that of Lynn, the engineer, and Daniels, the fireman. The fireman testified that he was looking out from the left side of the cab, and saw McGuin walking between the two tracks, where he would probably have been struck; he called the engineer's attention to him; the engineer blew a crossing signal; McGuin moved out of his sight; the engineer then applied the brakes and blew the alarm signal; he last saw McGuin for an instant within 8 or 10 feet of the engine, as he was coming across to the left rail of the south-bound track. The engineer testified that, upon the fireman speaking to him, he leaned out of the cab and saw McGuin between the two tracks, where he considered him safe, but he blew the station signal; McGuin looked over his shoulder, seemed to see the situation, stepped upon the north-bound track, where he was safe, and walked on, then looked straight back to the approaching train, seemed to become confused, started two or three ways in a second, and then darted across the south-bound track in front of the engine and was struck, when one more step would have put him clear. As he started across the track the alarm signal was given and the emergency brakes applied.

"Miller's testimony differs in the important particular that only the alarm signal was given to McGuin. He says that, standing on the track looking at McGuin, he saw him, just as he was passing out of sight, change his course towards the south-bound track; immediately afterwards, as the train approached, but before it was in sight, it blew a station signal, which he supposed was for Springfield or Edsall; after the train had passed him, he heard only the alarm signal, and that at the same moment the emergency brakes were applied. Miller, from the conditions surrounding him and McGuin, had his attention concentrated on the train and was on the alert for its signals; and if his testimony be accepted on the point of difference between him and the engineer and fireman with respect to the signal, it would support a reasonable inference that, if McGuin heard the train, he supposed it to be on the north-bound track and so moved to the southbound track to escape it, that, if the fireman and engineer saw him, they must have seen him on or near the south-bound track, and that the engineer gave no signal to warn him of the unusual fact that a north-bound train was approaching on the south-bound track until it was too late for him to escape.

"Running a north-bound train on the south-bound track is not evidence of negligence, and all the employees of the railroad must take notice of the occasional necessity to make the change. Nevertheless, as that is not the usual method of running, the railroad company must take notice that their employees will naturally be somewhat less on guard against a north-bound train running on a south-bound track, and due care requires greater precautions. The case is thus distinguished from the cases holding that under ordinary conditions an engineer may assume that a man in the apparent possession of his faculties will get out of the way of an approaching train. Therefore it was not unreasonable to hold the railroad company guilty of negligence in this case, since it could well be inferred from Miller's testimony that the engineer, running a north-bound train around a curve on a south-bound track, saw McGuin on or very near the south-bound track, and gave him no signal till it was too late. This conclusion is so clearly consonant with common sense, and the principle has been so recently discussed and stated by this court in Southern Ry. Co. v. Cook, 226 F. 1, 141 C.C.A. 115, that reference to the adjudicated cases seems unnecessary.

"These considerations also dispose of the position that McGuin's death was due to a risk assumed by him. He assumed the risk of the occasional necessity to run trains on tracks intended for trains going in the opposite direction, but the risk assumed was subject to the limitation that such trains should be run with the care to be reasonably expected under such conditions. Whether this train was so run was, as we have pointed out, a question for the jury. There is good ground to say McGuin was guilty of contributory negligence in assuming, as he probably did, that the train was on the northbound track. Belt Ry. Co. v. Skszypczak, 225 Ill. 242, 80 N.E. 115. But contributory negligence would not prevent a recovery.

"It is true that the District Judge refused to charge one or more unobjectionable requests of the defendant on the subject of assumption of risk, and that no instruction on the subject of assumption of risk was given under that name. But the defendant was not prejudiced by the omission, for instruction F, given at defendant's request, is an accurate and clear statement that McGuin assumed all risks of his occupation and his situation, not due to defendant's negligence in failing to give warning after perceiving his peril."

The recovery for plaintiff was justified solely on subsequent negligence, of which there is no evidence in this case. See Southern Ry. Co. v. Gray, 241 U.S. 335, 36 S. Ct. 558,60 L. Ed. 1030.

There is but one fact thoroughly established, and that is that Parker was guilty of negligence in going upon or remaining upon the south-bound track in violation of the rules of the company, and this should be held to be the sole proximate cause of his death. Davis v. Kennedy, 266 U.S. 147, 45 S. Ct. 33,69 L. Ed. 212; Southern Ry. Co. v. Peters, 194 Ala. 101,69 So. 611.

I therefore respectfully dissent.

SAYRE, J., concurs in the foregoing dissent.

On Rehearing.