Southern Railway Co. v. Peters

ANDERSON, C. J.—

(1) The complaint in this case sufficiently sets up a cause of action under the federal Employers’ Act. It sets forth every condition under which liability arises, and sets this forth substantially in the language of the statute. — 35 Stat. L. 65, Fed. Statutes Annotated, Sup. 1909, p. 584. This is all that is required of the complaint. — Grand Trunk R. R. v. Lind say, 233 U. S. 42 , 34 Sup. Ct. 581, 58 L. Ed. 838 , Ann. Cas. 1914C, 168; Seaboard Air Line R. R. v. Du Vall, 225 U. S. 477 , 32 Sup. Ct. 790, 56 L. Ed. 1171 ; A. C. L. R. R. v. Jones, 9 Ala. App. 499 , 63 South. 696 . See, also, Id., 12 Ala. App. 419 , 67 South. 632 . The complaint was not subject to the defendant’s demurrer.

(2) The plaintiff worked at a coal chute, coaling engines on an interstate road. He-said: “It was the order and rules of the forman to have the buggies ready when the engine came in. We had loaded np this buggy and was rolling it up to the tipple at that time.” It also appears that the next train expected was an interstate one between Alabama and Tennessee, and which was the one the plaintiff was preparing to accommodate when he was injured. It also appears that his duties required him to- serve all trains, whether strictly local or running between the states. The true test, in determining whether the injured servant comes within the purview of the federal statute, seems to be, Was the work in question a part of the interstate commerce in which the carrier is engaged? Supplying coal to an engine, by a servant employed to do so, where such engine is attached to, and used in pulling, interstate trains, is as essential to interstate commerce as is running or *98 repairing the engine. — Pedersen v. Delaware R. R., 229 U. S. 146 , 33 Sup. Ct. 648, 57 L. Ed. 1125 , Ann. Cas. 1914C, 153; St. Louis & S. F. R. R. Co. v. Seale, 229 U. S. 156 , 33 Sup. St. 651, 57 L. Ed. 1129 , Ann. Cas. 1914C, 156. One engaged in delivering coal to a chute to be later used in coaling both interstate and intrastate engines, is held to be engaged in interstate com merce. — Barlow v. Lehigh Valley R. R., 158 App. Div. 768 , 143 N. Y. Supp. 1053 . Pumping water for engines used in interstate commerce is within the act. — Horton v. Oregon, Wash. R. R., 72 Wash. 503 , 130 Pac. 897 , 47 L. R. A. (N. S.) 8. See, also, North Carolina Co. v. Zachary, 232 U. S. 248 , 34 Sup. Ct. 305, 58 L. Ed. 591 , Ann. Cas. 1914C, 159.

(3, 4) The defendant’s special pleas setting up contributory negligence are in bar, not in mitigation, of damages, and the federal act peimiits such negligence to be considered only in mitigation of damages. Whether this should be specially pleaded in mitigation of damages or is available under the general issue we need not now determine, since said pleas are in bar and were therefore subject to the plaintiff’s demurrer. If, as suggested by counsel for appellant, the pleas attempt to set up that the plaintiff’s negligence was. the sole cause of the injury, and that it was in no way produced through the negligence of the defendant, then they amount to a mere denial of the complaint, and the de-. fense Avas available under the general issue.

(5) We fully agree with counsel and with the holding of the United States Supreme Court, that the diminution of damages in case of plaintiff’s contributory negligence should be in proportion to the amount of negligence attributable to him; and this can only mean that where the causal negligence is partly attributable to *99 him and partly attributable to the carrier, the statute applies, and does not apply to a case in which the injury is due solely to the negligence of the plaintiff. But the pleas do not set up that the injury was caused solely by the plaintiff’s negligence, and if they did, as above stated, this would be but a denial of the complaint, and available under the general issue. The point made by appellant’s counsel has been dealt with in the case of Grand Trunk R. R. v. Lindsay, 233 U. S. 42, 34 Sup. Ct. 581, 58 L. Ed. 838 , Ann. Cas. 1914C, 168, in the following language: “If, under the Employers’ Liability Act, plaintiff’s negligence, contributing with defendant’s negligence to the production of the injury, does not defeat the cause of action, .but only lessens the damages, and if the cause of action is established by showing that the injury resulted ‘in whole or in part’ from defendant’s negligence, the statute would be nullified by calling plaintiff’s act the proximate cause, and then defeating him, when he could not be defeated by calling his. act ‘contributory negligence.’ For his act was the same act, by whatever name it be called. It is only when plaintiff’s act is the sole cause — when defendant’s act is no part of the causation — that defendant is free from liability under the act.”

(6) While the federal act eliminates contributory negligence as a defense in bar of the action, it does not take away the defense of assumption of risk, except as to cases in which the act causing the death or the injury was in violation of a statute enacted for the safety of the employee. — Seaboard Air Line R. R. v. Horton, 233 U. S. 492 , 34 Sup. Ct. 635, 58 L. Ed. 1062 , L. R. A. 1915C, 1, Ann. Cas. 1915B, 475.

(7) While the defendant’s third plea charges an assumption of risk, yet it is in the alternative as to the *100 defect, that is, that the employee knew of the defect, or negligently failed to discover same, and is as much a plea of contributory negligence as one of assumption of risk, and upon demurrer must be construed more strongly against the pleader. It was therefore, like all the other special pleas, subject to the plaintiff’s demurrer. We do not wish to be understood aé holding that plea 3‘would be a sufficient plea of assumption of risk if not in the alternative.

(8) There was no error in permitting the plaintiff to show the character of the next train that was expected, as it was an interstate train, and the jury could well infer that the plaintiff was preparing to supply it with coal, when he was injured.

(9) We do not think there was any error in the ruling as to the plaintiff’s recoverable damages — that is, for his expenses, loss of time, suffering, and diminished earning power. This holding is not in conflict with the case of Michigan Central R. R. v. Vreeland, 227 U. S. 59 , 33 Sup. Ct. 192, 57 L. Ed. 417 , Ann. Cas. 1914C, 176, as these items were specifically mentioned in said case as recoverable when the employee was only injured and brought the action himself, though a different rule was laid down as to the recoverable damages where death resulted and the action was brought by a representative or a dependent of the deceased employee.

The trial court committed no reversible error as to any of its rulings including the refusal of the motion for a new trial, and the judgment must be affirmed.

Affirmed.

McClellan, Sayre, and Gardner, JJ., concur.