I must dissent from the conclusion reached by the majority that the judgment in this appeal be affirmed.
As I interpret the opinion, it is based upon the premise that the entire question is to be resolved upon consideration of whether the evidence was sufficient to hold that the plaintiff's injuries resulted in whole or in part from the negligence of the railroad, a question for resolution by the jury under the evidence. This approach invites a conclusion on a basis which on analysis would appear to be irrelevant.
Liability under the F.E.L.A. arises, not from the injury, but from negligence causing the injury. Brady v. Southern Ry. Co.,320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239. In other words, there must be proximate and causal relation between the damages and the negligence of the employer railroad. Chesapeake etc. R. Co. v. Carnahan, 241 U.S. 241, 36 S.Ct. 594, 60 L.Ed. 979; Reynolds v. Atlantic C.L.R. Co., 251 Ala. 27, 36 So. 102.
While the F.E.L.A. deprives the employer of certain common law defenses, the employer's liability is still based upon negligence, for the F.E.L.A. is not a workmen's compensation law, and the employer is not an insurer. Reynolds v. Atlantic C.L.R. Co., supra; Hill v. Atlantic C.L.R. Co., 229 N.C. 236,49 S.E.2d 481, reversed on other grounds, 336 U.S. 911,69 S.Ct. 507, 93 L.Ed. 1075. Proximate cause is a proper inquiry in F.E.L.A. cases, and if the negligence alleged is not a proximate contributing cause of the injury, the allegation of negligence is not sustained. Alabama Great So. R. Co. v. Smith,256 Ala. 220, 54 So.2d 453.
A violation of the F.E.L.A. alone is not a direct and proximate cause of injury merely because an injury to an employee would not have happened but for such act by the railroad, unless the act is a substantial as well as a natural factor in bringing about the injury. Johnson v. Chicago G. W. Ry. Co., 242 Minn. 130, 64 N.W.2d 372.
In respects to accidents to which F.E.L.A. is applicable, an employee cannot recover unless the failure to comply with Sections 1-10 of the Act is the proximate cause of the accident resulting in injury. If such failure merely creates a situational background in which an accident happens from other independent causes, there is no *Page 339 liability on the part of the railroad. Anderson v. Baltimore and O. R. Co., 2 Cir., 89 F.2d 629.
As set out in the opinion of the majority, the plaintiff had owned the derringer about two weeks, and there was evidence to the effect that some of the railroad employees had carried guns as protection against snakes and tramps, though such was not a custom. The plaintiff did not have a permit for carrying the gun.
There is no evidence that plaintiff's employer had requested or required him to carry a pistol, or that it was the duty of the plaintiff to protect railroad property. We do not see how it can be said that the railroad was under a duty to anticipate that the plaintiff would place a derringer in his shirt pocket. The plaintiff was carrying the pistol for his personal use.
It is also to be noted that at the time the plaintiff was injured, the engine had completed its run and returned to Union Springs. The plaintiff had gone to his automobile to start the motor and turn on the heater in the automobile. It was then he took the pistol from the glove compartment of the automobile. He showed the derringer to the conductor, and after a short wait in a shed, boarded the engine. A fellow employee was on the engine. Under the conditions existing at the time of the accident, the need of the plaintiff for protection would appear questionable.
We agree that F.E.L.A. cases should not be decided on the basis of workmen's compensation laws. We strongly feel, however, that workmen's compensation cases dealing with the determination of whether an injury to a workman was one "arising out of" his employment, a phrase commonly found in workmen's compensation laws, furnishes a helpful analogy in determining whether an employee's injury was suffered "while he is employed," as the term appears in the F.E.L.A.
Because of a differing factual situation, we do not consider Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So.2d 666, of any persuasive value in determination of the question now being considered. This for the reason that Bruce was employed as a watchman at the Southern Cotton Oil Company. He regularly carried a pistol in connection with his duties. The pistol with which Bruce was actually shot was owned by the oil company, but kept in the company office for use by the employees of the company if need arose. Bruce sometimes carried this pistol instead of his own. Thus, his handling of the pistol was in the course of his employment. As to whether Bruce was negligent in placing the pistol in reach of the young boy who caused it to fire, and whether such negligence was the proximate cause of Bruce's injury was not an issue in the case, it being a workmen's compensation case.
In the present case, it was not the duty of the plaintiff to carry a pistol. His doing so was his own personal act. A pistol is a dangerous instrumentality, and a person handling a firearm must exercise a high degree of care. American Ry. Express Co. v. Tait, 211 Ala. 348, 100 So. 328; Loreno v. Ross, 222 Ala. 567,133 So. 251. Mr. Hamby, the conductor on the train testified there was no necessity for the plaintiff to have a pistol. The carrying of the pistol by the plaintiff was the sole, efficient, and proximate cause of the plaintiff's injury, independent of negligence, if any, on the part of the railroad. The employment of the plaintiff did not require his exposure to the risk of carrying a pistol in his shirt pocket, and the plaintiff's personal act in carrying the pistol was external to the course of his employment.
As stated in Southern Ry. Co. v. Smalley, 112 Ga. App. 471,145 S.E.2d 708, cert. den. 384 U.S. 906, 86 S.Ct. 1342,16 L.Ed.2d 359, rehearing denied 384 U.S. 958, 86 S.Ct. 1568,16 L.Ed.2d 553, a F.E.L.A. case:
"Before the Federal Employers' Liability Act is applicable to a suit for damages brought by a railroad employee *Page 340 against his employer, it is essential not only that the plaintiff was an employee of the defendant railroad engaged in the furtherance of interstate commerce but that such employee was engaged in activities incident to or an integral part of his employment at the time of the injury complained of. Quirk v. New York, C. St. L. R. Co., 7 Cir., 189 F.2d 97; Atchison, T. S. F. R. Co. v. Wottle, 10 Cir., 193 F.2d 628; Baum v. Baltimore Ohio R. Co., 7 Cir., 256 F.2d 753.
"As stated in the Wottle case, supra, the Federal Employers' Liability Act covers only those acts which are necessarily incidental to actual work performed in interstate commerce, such as going to and from the actual place of work after reporting for duty, and temporary departure from the line or course of duty, but does not cover activities not necessarily incident to or an integral part of employment in interstate commerce, such as those undertaken for a private purpose and having no causal relationship with employment."
See also Lavender v. Illinois Cent. R. Co., 358 Mo. 1160,219 S.W.2d 353, cert. den., 338 U.S. 822, 70 S.Ct. 67,94 L.Ed. 499, wherein it was held that where two railroad employees, out of line of their duties, had engaged in horseplay with loaded pistols, resulting in the accidental shooting of one of the employees, the relationship of employer and employee was suspended as to such activity, even though the shooting occurred while the employees were at their regular place of employment under company orders.
In the fairly recent case of Mensen v. Baltimore and Ohio R. R. Co., 111 Ill. App.2d 362, 250 N.E.2d 303, the plaintiff, a signal maintenance man for the defendant, used a truck supplied by the railroad in carrying out his duties. If tires were needed for the truck, the plaintiff was required to contact his supervisor for issuance of a requisition for their purchase. The plaintiff had made three written and four oral requests of his supervisor for a requisition for new tubes for the truck tires. The requisitions were not issued. One of the tires, which had gone flat four days before, again went flat. While removing the flat tire, the truck fell from the jack and injured the plaintiff. The plaintiff brought an action based on the F.E.L.A. and was awarded damages of $103,000.00.
The railroad appealed contending the lower court erred in denying its motions for a directed verdict and for a judgment n. o. v.
The Appellate Court of Illinois reversed the judgment holding that plaintiff's duties required that he maintain the truck, and the injury could have as well happened while changing a new tire as an old one, and to hold the railroad liable it was necessary that there be evidence that negligence of the railroad played a part in causing the injury; that only in a philosophic sense did the existence of the flat tire play a part in producing the plaintiff's injuries, in that had the tire not gone flat there would be no occasion to change it.
The Supreme Court of the United States, with two of the Justices dissenting, denied plaintiff's petition for writ of certiorari on 17 March 1970. See 397 U.S. 980, 90 S.Ct. 1104,25 L.Ed.2d 390.
It is our conclusion therefore that under the facts shown the plaintiff's injury must be deemed to have resulted solely and proximately from his own act in carrying the derringer, and not from negligence of the railroad; that such conduct was not within the scope of his duties, and removed him from the concept of being employed by the railroad in the aspect and meaning of Section 51, Title 45, found as part of F.E.L.A.
The lower court therefore erred in denying the appellant-railroad's request for the affirmative charge.
MADDOX, J., concurs. *Page 341