This action is by the appellee, Johnston, against the Illinois Central Railroad Company, a common carrier of interstate commerce, for personal injuries alleged to have been received by the plaintiff on the 18th day of November, 1913, as a proximate result of the defendant's negligence, and, as alleged in the complaint, while plaintiff was employed by defendant in such commerce, and is rested upon the provisions of the federal Employers' Liability Act of April 22, 1908 (35 Stat. C. 149 [Comp. Stat. §§ 8657-8665]).
The plaintiff (appellee here) concedes that it is essential to his right to recover under this act that the burden is on him to show that he was an employee of the defendant and engaged in interstate commerce at the time he was injured; this being one of the essential averments of his complaint. Hull v. Philadelphia Ry. Co., 252 U.S. 475, 40 Sup. Ct. 358,64 L. Ed. 670; Robinson v. Balt. Ohio R. R. Co., 237 U.S. 84, 94,35 Sup. Ct. 491, 59 L. Ed. 849.
On original consideration of the questions presented by the action of the court on the motion for new trial, it was ruled that the defendant had not acquitted itself of negligence with respect to its failure to discover and present the alleged newly discovered evidence on the trial. K. C. M. B. R. R. Co. v. Phillips, 98 Ala. 159, 13 So. 65; McClendon v. McKissack,143 Ala. 188, 38 So. 1020; Sou. Ry. Co. v. Wildman, 119 Ala. 565,24 So. 764. This ruling necessarily lays out of view the alleged newly discovered evidence and the question now to be considered *Page 9 must be determined from the evidence offered on the trial and submitted to and considered by the jury.
The sole ground on which the reversal of the judgment was awarded was that the evidence offered by the plaintiff was wholly insufficient to warrant the jury in finding that the plaintiff was an employee of the defendant at the time he was injured. Therefore, for the purposes of this case, assuming that the burden of proof is of the substance of the right of action given by the federal act, and that the federal rule which requires that the evidence offered by the plaintiff must be such as will warrant the jury in proceeding to a verdict in favor of the plaintiff (Rider v. Wombell, Law Rep. 4 Exch. 39; Bowditch v. Boston, 101 U.S. 16, 25 L. Ed. 980; Delaware R. R. Co. v. Converse, 139 U.S. 472, 11 Sup. Ct. 569, 35 L. Ed. 213), and not the "scintilla rule," applies, we will proceed to re-examine this question.
The evidence shows without dispute that the train, the derailment of which resulted in inflicting the injuries on the plaintiff, was a passenger train operated by the defendant on its road between Birmingham, Ala., and Chicago, Ill., for the carriage of passengers and their baggage; that for the purpose of carrying baggage it carried as a part of the train a compartment baggage and express car, in one compartment of which was carried the baggage of passengers, and in the other express for the American Express Company; that the plaintiff was the sole baggagemaster on the train between Birmingham and Cairo; that on the day on which plaintiff received his injuries the train left Birmingham for Cairo, manned by a crew of the defendant's employees, with the plaintiff in charge of the baggage and express car; and that at the time of and immediately before the derailment of the train the plaintiff was actively engaged in the discharge of his duties as baggagemaster, making out a report which he was required to forward to the general baggagemaster of the defendant company in Chicago. As to his employment, the plaintiff testified in response to the following question by his counsel:
"Mr. Johnston, what was your employment on November 18, 1913? Answer: "I was train baggagemaster on the Illinois Central Railroad for the Illinois Central Railroad Company."
And, further:
"I acted as baggagemaster and express agent on the train from Birmingham to Cairo, Ill. On this occasion I left Birmingham at noon going toward Cairo, and we had baggage going as far as Canada, I think — I won't be positive about that. We had baggage going beyond Cairo. It was a through train to Chicago. The Illinois Central Railroad carries passengers and freight between Birmingham and Cairo. They do a general business of common carrier of freight and passengers between Birmingham and Cairo, and were at the time of the accident. * * * I am not positive how long I had been on the run when I was injured."
On cross-examination the plaintiff testified that he was employed by E. K. Stone, superintendent of the American Express Company at Memphis, Tenn.; that he made application to Stone for employment with the American Express Company, and was employed about June 26, 1913; that he had formerly worked for the express company in a like capacity, and understood his duties; that he received his pay twice a month, and signed the pay roll at the office of the American Express Company; that his first employment in this capacity was about ten years previous; and that on the occasion of that employment he made application to a Mr. Adams, superintendent of the American Express Company at St. Louis, and under that employment he worked for the "American Express Company and the Illinois Central Railroad Company."
The defendant's witness Scott testified that he was an employee of the American Express Company; that he had never been in the employ of the defendant company and had no connection whatever with it; that he did not know much about the duties of a baggagemaster on the route, except that he was supposed to look after the baggage; that it was the duty of the express messenger to do this, but he had no knowledge of the arrangement between the express company and the railroad company, if any there was. E. K. Stone, a witness for the defendant, testified that he was at the time of the injury and prior thereto superintendent of the American Express Company; that Johnston at the time of the injury was working for the American Express Company, and had been working for them, under his last employment, for four or five months prior to his injury; that plaintiff made application to him by letter for employment, and that he (witness) wrote him he could probably provide a place for him, and he came down "and did extra running as a messenger," and at the time he was injured was "running as express messenger for the American Express Company," at a salary of $80 per month, which was paid by the express company; that it was "his duty to receive and deliver express to and from the cars and make a record of it as he handled it — also to handle the baggage and baggage supplies in the same manner"; that no one except the American Express Company had authority to employ or discharge men as express messengers to do the work Johnston was doing at the time; that they were paid by the express company, and their duties and labor controlled by the express company. On cross-examination this witness testified that he did not know what arrangements the American Express Company had with the Illinois Central Railroad Company through which the express messenger handles the baggage of the railroad company; that *Page 10 such matters were handled by higher authority than the superintendent.
It cannot be doubted that some officer, agent, or employee of the railroad company was charged with the duty of employing or arranging for the employment of baggagemen for its trains — the work which plaintiff was doing at the time of the injury — and yet not a single employee of the defendant was called to testify on this subject, and no contract, rule, or other documentary evidence was offered on the trial to shed light on this question. The defendant was content to rest this aspect of its case on the testimony of the two agents of the express company, who were shown to have no knowledge of the business arrangement between the express company and the railroad company, if such there was, under which the plaintiff was doing the work and performing the duties of baggagemaster for the defendant.
The evidence stated clearly warranted the submission of this question to the jury, and warranted them in finding that the plaintiff was an employee of the defendant at the time he was injured. A. C. L. R. R. Co. v. Treadway's Adm'x, 120 Va. 735,93 S.E. 560, affirmed on appeal, 245 U.S. 670, 38 Sup. Ct. 191,62 L. Ed. 540; Standard Oil Co. v. Anderson, 212 U.S. 215,29 Sup. Ct. 252, 53 L. Ed. 480; Driscoll v. Towle, 181 Mass. 416,63 N.E. 922; T. C. I. Co. v. Hayes, 97 Ala. 201, 12 So. 98; Drennen Co. v. Smith, 115 Ala. 397, 22 So. 442; L. N. R. R. Co. v. Williams, 199 Ala. 453, 74 So. 382; North Carolina R. R. Co. v. Zachary, 232 U.S. 248, 34 Sup. Ct. 305,58 L. Ed. 591, Ann. Cas. 1914C, 159; Dallas Mfg. Co. v. Townes, 148 Ala. 146,41 So. 988.
The next and final question to be considered is whether the verdict in this case is so grossly excessive that the court should have awarded a new trial on that ground. The evidence pertinent to this inquiry shows that the plaintiff at the time of his injury was 41 years of age, of splendid physique, and in perfect health; that he was wholly dependent on his labor for the support of himself and his family; that at the time of his injury he was earning $80 per month; and that since that time the salary of the position which he then held has been increased to $110 per month.
The evidence warranted a finding by the jury that the plaintiff's injuries were permanent, destroying his physical and mental integrity, and rendering him a helpless cripple for life; that his disability was accompanied by constant pain and suffering; and that his earning power has been practically, if not completely, destroyed. Dr. Davis, a surgeon of long experience, who had made two examinations of the plaintiff — the first a short time after the injury and the other shortly before the trial — testified in substance that as a result of the accident the plaintiff had suffered a displacement of the lower lumbar vertebrae to such extent as to separate the sacrum joint on both sides of the vertebrae, causing a sacroiliac looseness in these joints; that the tendency of such injury was to produce more or less disability; usually accompanied with pain; and that in his opinion the plaintiff is permanently crippled and disabled. The injury occurred November 18, 1913, and on the trial four years later the plaintiff testified:
"When the train derailed I was knocked unconscious. When I came to myself I found my back was badly hurt, and I had received a scalp wound extending from here to here [indicating], and this finger was crushed and broken. * * * I have not been able to perform the duties of my employment since that time. I have never been able to work. [Here witness weeps.] I was a healthy man before this. I was strong and healthy and vigorous and worked regularly. I could take a trunk or baggage up this way and put it as high as any man. I have not been able to do that since this accident. I have not been able to work at all to do anything. I am not able to appear in court when it comes to what I am able to do. I worked regularly before the accident. [Witness weeps.] My head don't bother me except with dull pain. My back is in constant pain, unbearable pain, all the time when I am sitting in this position. In this position I get some rest, but there is pain there all the time. I cannot relax at night when I lie down, and some nights I don't sleep one wink, just lie there, and my back goes this way [illustrating]. My kidneys bother me some, more or less, ever since that, and never bothered me before that."
The evidence further shows that a month or so after the plaintiff left the hospital he was given employment by the express company as cashier in its office in Birmingham, and that his physical and mental condition was such that he could not perform the duties of this employment, though they were light, and for this reason he was let out of such employment.
While the damages awarded were in a sense heavy, after taking into consideration the physical injury and suffering, plaintiff's physical and mental condition before the injury and his reasonable expectancy of life, together with the financial loss by reason of loss of earning capacity, and depreciated value of money as a medium of exchange at the time of the award of the damages and now, we are not convinced that the damages awarded are so excessive as to justify interference by this court. In normal times judgments awarding larger damages have been sustained for injuries no more serious than those here shown. Huggins v. A. C. L. R. R. Co., 96 S.C. 267, 79 S.E. 406; Hughes v. Harbor S. B. S. Ass'n, 131 A.D. 185,115 N.Y. Supp. 320; Zibbell v. So. Pac. Co., 160 Cal. 237,116 P. 513; Tex. Pac. Ry. Co. v. Matkin (Tex.Civ.App.)142 S.W. 604; Id., 107 Tex. 125, 174 S.W. 1098; McMahon *Page 11 v. Ill. Cent. Ry. Co., 127 Minn. 1, 148 N.W. 446; St. L. I. M. S. Ry. Co. v. Webster, 99 Ark. 265, 137 S.W. 1103, 1197, Ann. Cas. 1913B, 141; Houston T. C. R. Co. v. Gray (Tex.Civ.App.) 137 S.W. 729; Reeve v. Colusa Gas Electric Co.,152 Cal. 99, 92 P. 89; Penn. Co. v. Barton, 130 Ill. App. 573; Huggard v. Glucose Sugar Refining Co., 132 Iowa, 724,109 N.W. 475; Waters-Pierce Oil Co. v. Snell, 47 Tex. Civ. App. 413,106 S.W. 170; Padrick v. Gr. North. Ry. Co., 128 Minn. 228,150 N.W. 807, L.R.A. 1915F, 1; Otos v. Gr. North. Ry. Co.,128 Minn. 283, 150 N.W. 922, affirmed, 239 U.S. 349,36 Sup. Ct. 124, 60 L. Ed. 322; Hackett v. Chi. I. L. Ry. Co., 170 Ill. App. 140; Id., 228 U.S. 559, 33 Sup. Ct. 581, 57 L. Ed. 966; Whitehead v. Wis. Cent. Ry. Co., 103 Minn. 13, 114 N.W. 254,467; Yazoo M. V. R. Co. v. Wallace, 91 Miss. 492, 45 So. 857; St. L. S.W. Ry. Co. v. Waits (Tex.Civ.App.)164 S.W. 870.
In the case of L. N. R. R. Co. v. Williams, 183 Ala. 138,62 So. 679, Ann. Cas. 1915D, 483, this court affirmed a judgment awarding $27,000 for an injury not as serious as the injuries in this case, and at that time the dollar had double its present purchasing power. It was there observed:
"These verdicts, it is freely conceded, do not illustrate the average conceptions of juries, as shown by the general run of the cases reviewed in the two notes referred to, and in the brief for appellant. But, as noted by the editor of Annotated Cases (16 Ann. Cas. 10), the tendency in recent years has been for verdicts to award, and appellate courts to sustain, increasingly larger sums as compensation for personal injuries. This is attributable, no doubt, to the greatly decreased purchasing power of a dollar, as exemplified in the rise in the price of nearly all commodities, and the enormous increase in the cost of living; and, in some measure, perhaps, to a higher regard for human life and the value of physical efficiency."
See, also, Cent. of Gas Ry. Co. v. White, 175 Ala. 62,56 So. 574.
The jury and the trial court had the opportunity of seeing and observing the plaintiff while he was testifying as a witness, and were in a better position to determine whether or not his condition was feigned or real; and after a careful consideration of the evidence in this record, we find no just reason for disturbing the verdict. Ray v. Watkins, 203 Ala. 683,85 So. 25, and authorities there cited. Other questions are fully dealt with in the original opinion.
The rehearing is therefore granted, the judgment of reversal set aside, and the judgment of the circuit court is affirmed.
SOMERVILLE, GARDNER, and THOMAS, JJ., concur.
SAYRE, J., concurs in the opinion as to the rules of substantive law, but holds that the verdict is excessive and for this reason the judgment should be reversed.
ANDERSON, C. J., and McCLELLAN, J., dissent, adhering to the views expressed in the original opinion.