Louisville and Nashville Railroad Co. v. Bayles

PER CURIAM. This is an appeal from a verdict and judgment in favor of the plaintiff in the sum of $24,500 in a Federal Employers’ Liability Act case. This is the second appeal in this cause. On first appeal, there was judgment for defendant but we held that the trial court erred in sustaining the defendant’s demurrer to Count B of the amended complaint. Bayles v. Louisville & N. R. Co., 272 Ala. 188, 129 So.2d 679. The trial was again had on Counts A and B as before. Count A charged that the plaintiff was caused to fall or be snatched or jerked from a moving railroad car due to the negligence of officers, agents or employees of defendant or by reason of a defect or insufficiency due to negligence of defendant in maintaining its equipment. Count B charged that plaintiff’s injuries proximately resulted from the railroad’s negligence in assigning the plaintiff to dangerous work when the railroad knew or should have known that plaintiff was physically unfit to engage in such work. On the day of the accident, plaintiff had been working on a local freig'ht train for approximately five hours and his train had covered seventy-five miles on the main line. While doing some switching work at Gulf-port, Mississippi, he gave the engineer the signal to start the movement of the cars. Both his feet were solidly placed in the stirrup of the last car and he had a good grip on the handhold before the movement began. After he had traveled about fifty feet, he felt a “terrific snatch” and a lick or stinging sensation in the back of his. head and he fell. He testified that he did not know whether he lost his balance or was hit by something and he had no positive knowledge of the cause of his fall. He was taken to a Gulfport hospital and when first seen, he was unconscious and partially paralyzed. In the attending physician’s opinion, plaintiff had a cerebral vascular accident, commonly called a “stroke.”' The evidence in this case is substantially the same as in the first trial, and all of the assignments of error argued in this appeal are concerned with the refusal of the trial court to give certain requested written charges. Assignment 7 charges error in the failure to give Charge 3, which reads: “The Court charges the jury that if you believe the evidence in this case you would not be authorized to find in [209] favor of the plaintiff and against the defendant on account of any alleged defect or insufficiency due to the negligence of the defendant in its cars, engines, track, roadbed, works, machinery, appliances or other equipment.” There was evidence that the movement of the train in which plaintiff was hurt was conducted without the use of air brakes, and that the movement would have been smoother had air been used. This made a jury question as to an “insufficiency,” and since the charge included “defect or insufficiency,” it was properly refused. The same argument to sustain Assignment 7, supra, is directed to Assignment 12. We hold that the court did not err in refusing Charge 12. Assignment 13 is based upon the refusal to give Charge 14, pointing out that defendant was not an insurer and liable only for negligence. The principle of law stated in this charge was fairly and substantially covered by the court’s oral charge, and no reversible error is shown. Title 7, § 273, Code 1940; Smith v. Lawson, 264 Ala. 389, 88 So.2d 322. Assignment of error 9 is that the court erred in refusing to give at the request of the defendant the following written charge: “6. The Court charges the jury if you believe the evidence in this case you should not find a verdict in favor of the plaintiff under Count ‘B’ of his complaint.” On the first appeal we said that Count B should be construed as charging that the plaintiff’s injury proximately resulted from the railroad’s negligence in assigning the plaintiff to dangerous work when the railroad knew that plaintiff was physically unfit to engage in such work. It is more correct to say that Count B charges that the railroad knew or should have known that plaintiff was physically unfit to engage in such work. What constitutes negligence for the purpose of the Federal Employers’ Liability Act is a federal question, not varying in accordance with the different conceptions of negligence applicable under state and local laws for other purposes. Federal decisional law formulating and applying the concept governs. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282, 11 A.L.R.2d 252; Louisville & N. R. Co. v McElveen, 270 Ala. 600, 120 So.2d 884. In Urie v. Thompson, supra, it was said that the coverage of the F.E.L.A. is not restricted to harm inflicted by external, violent or accidental means and that “when the employer’s negligence impairs or destroys an employee’s health by requiring him to work under conditions likely to bring about such harmful consequences, the injury to the employee is just as great when it follows, often inevitably, from a carrier’s negligent course pursued over an extended period of time as when it comes with the suddenness of lightning.” (337 U.S. 186-187, 69 S.Ct. 1033, 93 L.Ed. 1282.) There are federal cases which have held that where a plaintiff can prove that management forced a sick employee, of whose illness they knew or should have known, into work for which he was unfitted because of his physical condition, a case is made out for the jury under the F.E.L.A. Dunn v. Conemaugh & Black Lick R. R., (3d Cir.), 267 F.2d 571; Nuttall v. Reading Co., (3d Cir.), 235 F.2d 546. See also Dunn v. Conemaugh & Black Lick R. R., (D.C.), 162 F.Supp. 324, and Brown v. Pennsylvania Railroad Co., (D.C.), 179 F.Supp. 858. Bayles, a railroad flagman, started to work for the defendant railroad in 1942. Prior to September of 1952 he lost no time from work because of illness except for a five-week period when he had to take a leave of absence because of a hernia operation. In September of 1952 illness forced Bayles to take a leave of absence which lasted until about December [210] 10, 1953. During that time Bayles was hospitalized on three occasions. Pie suffered with anemia, prostate trouble, a liver involvement, hardening of the arteries, low blood pressure, and heart trouble. On or about December 1, 1953, after being advised by his personal physician that he might seek reemployment, Bayles made application to the defendant railroad for work. He was ordered to submit to a strict physical examination by a doctor in the employ of the' defendant. Bayles advised the doctor of his many infirmities. Following an examination, the doctor advised Bayles that he could return to work. Bayles began work on or about December 10, 1953. He was placed on the extra board. Pie was assigned duties from time to time on passenger, through freight and local freight trains operating out of Mobile. His work when assigned to local freight trains was in connection with the switching of cars at different points between Mobile and New Orleans. In the early part of 1956 Bayles was “laid off.” Shortly thereafter he heard that there was an opening in the railroad yards at Mobile and he made an application for a job there. He was given work in the yards, which he attempted to perform for approximately two months. The work in the yards was in connection with the switching of cars. During the time he worked in the yards he was clumsy and awkward and on occasions fell down while performing his duties. One of his coworkers reported his condition to the yardmaster and on one occasion Bayles suffered a fall in the presence of the yardmaster while attempting to perform his duties. After the two-month period Bayles was removed from his job in the yards. He was later put back “on the road” where again he worked as a flagman on passenger, through freight and local freight trains out of Mobile. This employment lasted for a few months and he was “laid off” again. Bayles then reapplied for work in the yards. He was refused reemployment on the ground that his coworkers had complained of his inability to do the work because of his awkwardness and clumsiness and because they had to look out for his safety. Later Bayles was reemployed for work on trains traveling between Mobile and New Orleans. He was engaged in switching operations in Gulfport, Mississippi, on November 15, 1956, when he suffered the disability here involved. Neither Bayles’ personal physician nor any railroad doctor had advised the railroad officials of Bayles’ inability to perform his duties because of his physical condition. He never protested any job assigned to him or complained of his physical infirmities after reporting back to work in December, 1953. There is evidence to the effect that Bayles would remove his name from the extra board if he had reason to believe that he was to be called for work on a local freight which required his services in connection with the switching of cars. However, the evidence further shows that if his name had not been removed and he was called to do that kind of work, he was subject to being fired if he did not accept the assignment. It is insisted that the evidence as summarized above was not sufficient to show that the railroad had knowledge of Bayles’ physical infirmities or that it required him to do the work in which he was engaged at the time he suffered the stroke. We do not agree. Under the liberal view which the Supreme Court of the United States has taken in regard to cases brought under the Federal Employers’ Liability Act, we feel constrained to hold that the railroad’s knowledge, actual or constructive, of Bayles’ illness was a jury question. Likewise, we think the evidence to the effect that if he had not accepted the call on November 15, 1956, he would have been subject to being fired also was sufficient to make a jury question as to whether or not he was required to perform the duties in which he was engaged. [211] Since our decision on first appeal, the Court of Appeals of Indiana in the case of Davis v. Louisville & N. R. Co. et al., 132 Ind.App. 419, 173 N.E.2d 749, held the railroad not liable in a factual situation somewhat similar to that presented here. The Supreme Court of the United States denied certiorari. 369 U.S. 820, 82 S.Ct. 828, 7 L.Ed.2d 786. The railroad here insists that the denial of the writ of certiorari by the Supreme Court should be considered by us as an approval of the holding of the Indiana court which we should follow in this case. The Supreme Court of the United States has often stated that the denial of certiorari is not to be construed as an approval of the opinion sought to be reviewed. Moreover, for aught appearing, certiorari was denied by the Supreme Court for the reason that the petition for certiorari failed to comply with the rules of that court or because the Supreme Court of Indiana had been unable to review the holding of the Court of Appeals of Indiana because the proper petition for rehearing was not filed and presented to the Court of Appeals of Indiana in accordance with the directions of the statutes and laws of that state. The doctrine of assumption of risk in F. E. L. A. cases was completely abolished by the 1939 amendment. 53 Stat. 1404; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 58, 63 S.Ct. 444, 446, 87 L.Ed. 610, 612, 143 A.L.R. 967. In view of the rule of the federal cases heretofore cited, we feel constrained to hold that a jury question was presented under Count B of the complaint and that the trial court did not err in refusing Charge 6 requested by the defendant. Likewise, defendant’s requested Charge 15 was refused without error. Affirmed. All the Justices concur except MERRILL, J., who dissents.