The application for rehearing and argument in support thereof are on the specific grounds indicated as error in the views expressed in the original opinion and the holdings of the court: (1) That there was evidence of causal negligence of defendant's agents "proximately causing the death of intestate"; (2) that "Parker did not assume the risk of the injuries by which he met his death"; (3) that Parker was "not guilty of negligence which solely and alone proximately caused and contributed to his injury and death"; and (4) that appellant was not entitled to a new trial because the verdict of the jury was "contrary to the law and the evidence."
We will consider these due insistences now made by counsel.
There is not an insistence in the motion that there was error in refusing defendant's written charges such as 9, 13, and 42, having for their purpose the absolving of the engineer from negligence. There was the submission to the jury in the oral charge, the questions of simple negligence vel non of the "engineer operating" this train, or "those operating this train," to keep a lookout for trackmen who may have been "caught in the discharge of their duties unaware," and that of whether there was an "excuse for those so operating a train necessarily from giving signals such as an ordinarily prudent and careful man should have done under like circumstances"; and under all the circumstances whether the failure of signals taken with the failure of a lookout constituted negligence. Page 31 of the record.
In response to the insistence of appellant, we may say of the recent cases cited from the United States Supreme Court that they are each to be distinguished from the case for decision.
In Chesapeake Ohio R. Co. v. Nixon, 271 U.S. 218,46 S. Ct. 495, 70 L. Ed. 914, the holding was that a section man engaged in maintaining a track assumes the risk of injury from negligence on the part of train operators in failing to maintain a lookout for such employees along the track. There were no special and compelling circumstances for the lookout, as after specific warning and while running contrary to the usual course of transportation.
In Toledo, St. Louis Western R. v. Allen, 276 U.S. 167,48 S. Ct. 215, 218, 72 L. Ed. 515, 517, the holding was that a car checker working in a railroad yard at night assumes the risk of injury from the shunting of cars without warning, along a track adjoining the one on which he is at work, where he is familiar with the conditions and the method of that work. The court said: "In the absence of knowledge on their part that he was in a place where he was liable to be struck and oblivious of that danger, they were not required to vary the switching practice customarily followed in that yard or to warn or to take other steps to protect him. There is no evidence to sustain the allegation that the other employees saw, or negligently failed to discover, plaintiff in a 'position of peril and oblivious thereof.' " Thus was this case clearly differentiated from the case at bar.
The case of Atlantic Coast Line Railroad Company v. Davis, Adm'r, 279 U.S. 34, 49 S. Ct. 210, 211, 73 L. Ed. 603, was that of a volunteer leaving a place of safety for doing the work, and taking a position of obvious danger where he would be struck by the boom of the shovel if it made a full swing and he did not move out of its path; held no liability. In this case it is observed: "* * * It is clear that, even if the Railroad Company then owed him any duty in this respect, there was no substantial evidence that there was any negligence upon its part in failing to furnish a safe place in which to work. The evidence is undisputed that there were several places in which he could have stood in spotting cars, all of which were reasonably safe and well adapted to the performance of the work, and in which he could not have been struck by the swinging boom. And the inevitable conclusion from all the evidence is that he voluntarily abandoned the safe position on the running board which he at first assumed and placed himself in a position of extreme danger on the 'jack-arm,' a place not furnished for the performance of this work and ill adapted thereto, and one of obvious danger in which he would inevitably be struck if the boom made a full swing unless he moved out of its path; and thereby through his own *Page 652 negligence, as the sole and direct cause of the accident, brought on his own death." Thus this case is distinguished by its unusual and peculiar facts calling for the duty of maintenance of a lookout at the time and place.
And in Unadilla Valley Railway Company v. Caldine,278 U.S. 139, 49 S. Ct. 91, 73 L. Ed. 224, 232, the conductor was killed in violation of transportation orders. The observation of Mr. Justice Holmes is: "The phrase of the statute, 'resulting in whole or in part,' admits of some latitude of interpretation and is likely to be given somewhat different meanings by different readers. Certainly the relation between the parties is to be taken into account. It seems to us that Caldine or one who stands in his shoes is not entitled as against the Railroad Company that employed him to say that the collision was due to any one but himself. He was in command. He expected to be obeyed and he was obeyed as mechanically as if his pulling the bell had itself started the train. In our opinion he cannot be heard to say that his subordinate ought not to have done what he ordered."
In the case of Atlantic Coast Line Railroad Co. v. Driggers,279 U.S. 787, 49 S. Ct. 490, 73 L. Ed. 957, the manner of the injury is thus stated by the court:
"Driggers had been employed by the Railroad Company for about five years, and for about six months had been a member of a switching crew. He was injured by stepping off the footboard of the switch engine while it was in motion and striking the engine of a local passenger train that was passing along an adjacent track. * * *
"The undisputed evidence shows that Driggers had no duty which required him to dismount from the switch engine at that time, but was supposed to remain on the engine, although it was optional for him to get off and throw the switch.
"On the other hand, the undisputed evidence shows that the passenger train, which was a few minutes behind time, and was running from 35 to at least 50 miles an hour, had a clear and unobstructed right of way on the south-bound line. The engineer was on the lookout ahead, had blown signals at a point about 2,000 feet to the north, and again before reaching the scene of the accident; and the automatic bell on the engine, which he had set in motion, was ringing continuously up to the time of the accident. There was no obstruction whatever on the line ahead. Although the engineer saw the switch engine about to enter in a southerly direction on the northbound main line, there was nothing to indicate that any member of its crew would attempt to dismount between the two lines; and Driggers suddenly struck the side of the engine behind the pilot, in a position where he was not and could not have been seen by the engineer, and when it was impossible to stop the train.
"Under these circumstances, it is clear that Driggers, by his own negligence, as the sole and direct cause of the accident, brought on his own death, and that there is no ground upon which the liability of the Railroad Company may be predicated. Compare Atlantic Coast Line R. Co. v. Davis, supra, page 39 of 279 U.S. (73 L. Ed. 603, 49 S. Ct. 210), and cases cited."
These cases are each distinguishable from that before us. And the instant case is not within the rule that where the negligence of an employee is the sole proximate cause of his injury, he will not be permitted to recover under the Federal Employers' Liability Act (45 USCA §§ 51-59). L. N. R. Co. v. Fleming, 194 Ala. 51, 69 So. 125; L. N. R. Co. v. Jacobson,218 Ala. 384, 386, 118 So. 565; Illinois Cent. R. Co. v. Skaggs, 240 U.S. 66, 36 S. Ct. 249, 60 L. Ed. 528.
Under the decisions and undisputed evidence, the violation of the defendant's rule by the plaintiff — his contributory negligence — was not the sole and proximate cause of his injury and death. And such is the result whether tested by the state or federal decisions.
The insistence in motion for a new trial was that the verdict was "contrary to the law"; there was no specific ground that the verdict rendered was contrary to the instructions of the court and given charge C. The matter, on original hearing, in respects now to be considered, was incidentally mentioned in brief filed of date of November 25, 1929, and now urged in brief on rehearing. The matter and context of the original brief is:
"The so-called signal to the engineer by witness Alvis a mile and a half or two miles down the road from where the accident occurred, has no bearing on the case as we will show by Alabama authorities later. The Court said that the engineer was not negligent. * * *
"As stated the engineer was exonerated of all negligence by the Court. Charge C. p. 38 and subsequent negligence count, the Court charged out."
This was not a sufficient insistence in the motion and brief to present the question of conflict in instructions given and now being urged on rehearing. If it be conceded, without deciding, that the question was presented and that charge C presented correctly the question of law, it will be noted that the trial court had refused defendant's request for general affirmative instructions as to count 1 and as to the negligence vel non of the engineer (refused charges as to the engineer, operators, and employees are A, D, E, F, and G, and as to the engineer are 9, 13, *Page 653 and 42); and the court submitted to the jury the negligence vel non of such engineer in the oral charge under count one.
The court no doubt fell into error in giving charge C, after having refused the foregoing charges and giving charge H, the latter having application to subsequent negligence under count 2, which count was eliminated by several of defendant's written instructions in several forms.
The application for rehearing further urges error for refusal of defendant's request for the general affirmative charge on the grounds: (1) That there was failure of evidence of negligence of defendant's employees (in charge of the engine) under the Federal Employers' Liability Act; (2) Parker assumed the risk, whether ordinary or extraordinary risks, or those due to the negligence of defendant's employees, if they were known and appreciated by Parker. Then the Nixon Case, 271 U.S. 218,46 S. Ct. 495, 70 L. Ed. 914, is urged for the position taken as to the affirmative instruction. The facts have been stated on the original hearing. We have shown heretofore that the Nixon Case was not parallel, by reason of the absence of special and controlling circumstances — as that, while plaintiff's intestate was discharging his duties on the track and those in charge of the engine had due and timely warning of the immediate presence of some human being on the track ahead, and this notice was not denied by the enginemen, who proceeded without a lookout or signals, contrary to the usual course of travel thereon and under the special and material circumstances and facts, and injured Parker; a due lookout on the part of the enginemen and timely signals would (no doubt) have averted the collision. This made due care vel non on the part of the fireman and engineer a jury question, as applied to the facts of the case.
In response to the dissenting opinion, we will say that the point at which appellee's intestate was killed was shown by the evidence to have been a short distance in a northerly direction from a curve in the track in the direction in which the train was proceeding; and that the engineer could not from his position see the deceased until the curve was rounded, but that one on the fireman's side of the engine could have seen deceased for a sufficient and considerable distance to have given him effective warning; and that when the engineer had been notified that some one was on the track ahead of the train, he gave a caution signal with the whistle. We think that on account of the inability of the engineer to see ahead along the track for a sufficient distance, and that such observation was open to one on the fireman's side of the engine, and that the caution signal should have been notice to the fireman a sufficient distance away from the place, all together imposed upon the fireman certain duties to deceased, which the jury might reasonably infer were not rendered. There was a jury question as to the negligence of the fireman, and therefore there was no error in refusing charge D for the reasons we have indicated, and no error in ruling on the charges indicated in the dissenting opinion of Mr. Chief Justice ANDERSON.
That the rehearing be denied is the judgment of GARDNER, J., and the writer, BOULDIN, J., as stated, and FOSTER, J.
Mr. Chief Justice ANDERSON and BROWN, J., dissent on the grounds respectively indicated.
KNIGHT, J., not sitting.