Southern Railway Co. v. Maxwell

Smith, C. J., 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. [70] The evidence by which it was sought to prove that this piling was transported from one state into another was objected to by appellant, but, for the purpose of this discussion, we will assume its competency, and that it appears therefrom that the piling was shipped from Meridian, Miss., to the foreman of appellant’s bridge gang, at Sheffield, Ala. When it arrived there does not appear, but bn the occasion in question it was switched from one to another of appellant’s tracks in the Sheffield yards, for the purpose of being unloaded and stored. Whether-is was thereafter to be used by appellant, and, if so, when and where, does not appear. The car on which this piling was loaded had wooden standards on each side placed in an upright position, in iron sockets; and to make them more secure, and the better to enable them to support the piling, each standard was connected with the one on the opposite side of the car by two wires, one fastened to the middle of the standards, and the other to the tops. The usual method of unloading cars so loaded was to first cut the standards on one side thereof sufficiently to weaken them., and then for an employee to go on top of the piling and cut the wires on the side where the standards had been cut, which would cause the standards to break and the piling roll off on that side of the car. Wlien the car here in question was switched to the place where it was to be unloaded, appellee was directed by his foreman to cut the wires in the manner above outlined, and was proceeding so to do when the standards gave way on both sides of the car, causing the piling to roll off on each side thereof, some of which struck and injured him. These standards were defective, in that they were made of decayed wood; and the evidence for appellee tends to show that the foreman in charge of the gang was negligent in not ascertaining this fact before ordering appellee to cut the wires. The instructions granted for both appellant and appellee are predicated [71] upon liability vel non under tbe Federal Employers’ Liability Act. 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.