In Delaware, Lackawanna Western Railroad Company v. Koske,279 U.S. 7, 10, 49 S.Ct. 202, 203, 73 L.Ed. 578, Justice Butler, speaking for the court, observed: "The Federal Employers' Liability Act permits recovery upon the basis of negligence only. The carrier is not liable to its employees because of any defect or insufficiency in plant or equipment that is not attributable to negligence. The burden was on plaintiff to adduce reasonable evidence to show a breach of duty owed by defendant to him in respect of the place where he was injured, and that in whole or in part his injuries resulted proximately therefrom. And, except as provided in section 4 of the act [45 USCA § 54], the employee assumes the ordinary risks of his employment; and, when obvious or fully known and appreciated, he assumes the extraordinary risks and those due to negligence of his employer and fellow employees" — citing Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 501,34 S.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann. Cas. 1917B, 475; St. Louis-San Francisco R. Co. v. Mills, 271 U.S. 344,46 S.Ct. 520, 70 L.Ed. 979, and Northern Ry. Co. v. Page, 274 U.S. 65,75, 47 S.Ct. 491, 71 L.Ed. 929.
St. Louis S. F. R. Co. v. Dorman, 205 Ala. 609, 89 So. 70, and other decisions by this court are to like effect.
Count D of the complaint, on which the case was tried, ascribed the death of plaintiff's intestate to a defect in a "whipping strap" or "telltale" constructed and maintained by the defendant "approximately five hundred and sixty feet from the eastern entrance" of a tunnel at or near Cooks Springs, designed "to give employees of the defendant on trains operated" over its tracks leading through said tunnel "notice of the approach of said tunnel." This count avers "that on said date the defendant negligently caused or negligently allowed said 'whipping strap' or 'telltale' or device to warn employees on said train of the approach to said tunnel, to be defective, so that the same did not, on said date, give the said deceased notice and warning of his approach to said tunnel, and while the deceased, said plaintiff's intestate, was standing on saidtrain, or box car, or part of the coal car of said train, he was caused to be hit by the top of said tunnel and his skull was fractured and he was caused to be killed. And plaintiff avers that the death of her intestate was proximately caused by the negligence of an agent, servant or employee of the defendant, one I. V. Newsome, who was bridge and building supervisor of the defendant, and that said I. V. Newsome, while acting within the line and scope of his employment as such agent, servant or employee of the defendant, negligently caused or allowed said 'whipping strap' or 'telltale' or device to warn employees on said train of the approach to said tunnel, tobe defective, so that the same did not, on said date, give the said deceased notice and warning of his approach to said tunnel." (Italics supplied.)
The evidence is without dispute that the plaintiff's intestate, who was on the occasion of his injury and death the front brakeman on one of defendant's freight trains moving from Atlanta, Ga., to Birmingham, Ala., was last seen alive at Pell City, some 6 or 7 miles east of Cooks Springs, where the defendant's tracks led through a tunnel. When the train *Page 164 reached Brompton, some 7 miles west of the tunnel, where a stop was made to "set off some cars," said intestate did not appear to assist, as his duty required, and a search was made for him and his body discovered on top of the coal in the tender of the locomotive, his head toward the rear of the train. His skull was crushed on top and both arms broken.
The evidence is further without dispute that there are two overhead structures under which trainmen cannot pass standing erect on top of the train between Pell City and Brompton; one is the tunnel, the roof of which is about 4 1/2 feet above the top of the cars, or 17 feet and something over 7 inches above the tracks; that the overhead structure of the bridge is a fraction over 21 feet above the tracks. Both the bridge and tunnel were guarded on each side by "telltales" or "whipping straps." The evidence is further without dispute that the lower ends of the straps or cords of the telltale standing 560 feet east of the tunnel are approximately one foot and five inches higher than the roof of the tunnel. The evidence is further without dispute that the cords of the telltale will strike a person standing on top of the cars or on the coal in the tender, and warn him of the approach to the tunnel. The evidence is further without dispute that a person sitting erect on top of the cars or the coal would pass safely through the tunnel.
The evidence shows that plaintiff's intestate's duties were to stay in front, either on the engine or on the rear of the tender, receive and transmit signals from the rear of the train to the engineer, to throw switches when it was desired for the train to take a siding, to aid in switching and setting off cars, and on trains of the type on which said intestate was working a seat with a cushion was provided for the front brakeman in the cab of the locomotive, and also on the rear of the tender back of the coal.
When the train, after setting off cars at Pell City, moved out, the conductor caught the locomotive and remained in the cab; he last saw plaintiff's intestate on the ground, and whether he boarded the train at or near the tender or further back no one knows. The conductor testified that, as the train approached "Roberts," a mile and one-half east of the tunnel, the engineer blew for the station, and a signal was given from the rear of the train, and passed on from the place of the front brakeman on the rear of the tender by a white light, but he did not see plaintiff's intestate at that time.
Whether the overhead bridge was between Roberts and the tunnel, or west of the tunnel, does not appear.
The evidence further shows, without dispute, that the train blew a signal before entering the tunnel, and that the glare of the headlight disclosed the presence of the tunnel ahead for several hundred feet.
Said intestate was an experienced brakeman, had been in the service of the defendant on this same line for from 28 to 30 years, and was familiar with the situation at this tunnel.
This evidence falls short of showing that the telltale east of the tunnel was defective, or in any way insufficient to properly warn trainmen standing on top of the cars, or the tender, or that the fact that the straps thereon were higher than the roof of the tunnel proximately caused or in any way contributed to the injury and death of plaintiff's intestate. In fact as to how, when, or what caused his death is left by the evidence a matter of conjecture, pure and simple, and, under the established law applicable to the case, the defendant was due the affirmative charge which the court erroneously refused. St. Louis S. F. R. Co. v. Dorman, 205 Ala. 609,89 So. 70; Atchison, Topeka Santa Fe Railway Company v. Toops, Administratrix, 281 U.S. 351, 50 S.Ct. 281, 74 L.Ed. 896; New York Central Railroad Company v. Ambrose, Administratrix,280 U.S. 486, 50 S.Ct. 198, 74 L.Ed. 562.
Reversed and remanded.
ANDERSON, C. J., and GARDNER, BOULDIN, BROWN, and FOSTER, JJ., concur.