I concur in so much of the opinion of the majority as deals with the rulings of the court on the demurrers to the complaint, though it would seem, in view of the undisputed evidence, that the plaintiff was injured "while employed in interstate commerce," the doctrine of error without injury might well have been applied as to these rulings. Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339; Best Park Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929. This, without offending any federal right, as such matters relate to state practices. Kansas City Western R. Co. v. McAdow, 240 U.S. 51, 36 S. Ct. 252, 60 L. Ed. 520; Central Vermont R. Co. v. White, 238 U.S. 507, 35 S. Ct. 865,59 L. Ed. 1433, Ann. Cas. 1916B, 252; 2 Roberts' Fed. Liability, p. 1167, § 670. *Page 391
In view of the pleadings circumscribing the scope of the issues, the first count limiting the inquiry to negligence of foreman McMichael "in ordering the plaintiff to work on said train and remove said ties therefrom, and the second count to negligence of the officers, agents or employees of the defendant * * * in charge of said train, negligently causing said train to suddenly lurch and thereby causing said cross-ties to fall," I concur with the majority that the defendant was entitled to the affirmative charge for failure of the proof to support these averments. But I am not in accord with the view that the plaintiff assumed the risk of the condition that developed and resulted to his hurt.
It is conceded by the majority "that the plaintiff was employed in a work not inconsistent with his general employment as a section hand, under the orders of the section foreman, his immediate superior"; * * * that "McMichael, the section foreman, instructed plaintiff to unload the ties and assisted him by rolling the ties overboard as plaintiff took them singly from the stack, lifting up one end, and slid them endwise to him, as McMichael had directed him and showed him, by example, how to do." The cross-ties being unloaded were stacked "crosswise on a flat car" constituting a part of the train, which was moving forward at a low rate of speed, its movement attended with "jerks, off and on," and with the conditions affecting the risk changing with the movement of each tie from the moving car. In these circumstances it was negligence for McMichael the foreman, under whose supervision the work was being done, to create or allow such conditions to develop or exist as would render an injury probable, which, with the exercise of due care, he might have foreseen and prevented. L. N. R. R. Co. v. Handley, 174 Ala. 593, 56 So. 539; Sloss-Sheffield Steel Iron Co. v. Green, 159 Ala. 182,49 So. 301; Tenn. C. I. R. R. Co. v. George, 161 Ala. 422,49 So. 681; Western S.C. F. Co. v. Cunningham, 158 Ala. 369,48 So. 109.
The Federal Employers' Liability Act abrogates the common-law fellow servant rule, and places the negligence of a coemployee on the same basis as the negligence of the employer. Chesapeake Ohio Ry. Co. v. De Atley, 241 U.S. 310, 36 S. Ct. 564,60 L. Ed. 1016. And under the uniform authority, both state and federal, the employee does not assume risks arising from the negligence of servants, agents, or employees for whose negligence the employer is made liable by the Employers' Liability Act. Chesapeake Ohio Ry. Co. v. De Atley, supra; L. N. R. R. Co. v. Handley, supra.
I do not concur in the holding of the majority that res ipsa loquitur doctrine as interpreted and applied by the federal courts is without influence in the circumstances here presented. Roberts' Federal Liability, p. 951, § 544.