Woodward Iron Co. v. Hubbard

A full statement of the facts necessary to an understanding of the question here treated is found in the dissenting opinion of Justice GARDNER, and such statement of facts is here adopted by reference thereto, without being here repeated.

The majority are of the opinion that the track upon which the "coke pusher machine" in question was operated is not a "railway," nor "any part of the track of a railway," within the meaning of subdivision 5 of the Employers' Liability Act (Code 1907, § 3910 [5]). The question was discussed at some length, and many decisions and text-books were reviewed and cited, in the case of Woodward Iron Co. v. Lewis, 171 Ala. 233, 54 So. 566. It was there held that a tram track, used for the purpose of transporting ore which was being mined, was a "railway," within the meaning of this subdivision. We did not decide in that case, nor did we mean to say as dicta, that every track or tramway, used by a master in his business, upon or over which any machine is moved by means of a steam locomotive or electric motor, would be a railway, within the meaning of the statute in question. In fact, several cases were cited approvingly in which it was intimated, if not decided, that all tracks or ways on which machinery is operated by the master, even by means of steam engines and electric motors, are not "railways," or "any part of the track of a railway," within the meaning of the statute. See Woodward Iron Co. v. Curl, 153 Ala. 205, 44 So. 974; Id., 153 Ala. 215, 44 So. 969; Sloss-Sheffield Steel Iron Co. v. Mobley, 139 Ala. 425, 36 107 So. 181; Freeman's Case, 137 Ala. 481, 34 So. 612. It is true that these cases did not expressly decide that the tracks there in question, or a track like the one in question, is not a railway, or a part thereof, within the meaning of the subdivision in question; but they do show that this class of tracks was not by the court or by the parties considered to be such in those cases. Mr. Dresser, in his work on Employers' Liability (volume 1, § 80, p. 349), says, in defining the phrase "upon a railway":

"The courts have confined all words of this section, as well as those under discussion, to the kind of railroad the Legislature must have had in mind."

Each term used in this subdivision, such as "signal," "point," "engine," "car," and "electric motor," must be considered in connection with the context, and not as an isolated term. As is said by the text-writers on the subject of the English Employers' Act, "upon a railway" is the keynote to the subsection, because it applies to and qualifies each of the terms. This court has taken the same view of our act, which is merely a copy of the English statute. The track or way used by the master in his business, to come within the meaning of this subdivision, must be used or intended for the purpose of transporting or moving products, freight, or passengers, in connection with his business. It was never intended to include all tracks, ways, or rails, upon which any of his machinery is moved merely in its operation or transportation, as in the instant case. The track in question was not intended to transport any products, freight, or passengers, to or from the master's plant or place of business, but merely and exclusively for moving the "coke pushing machine" from one coke oven to another. If it had been used for transporting coal to the coke ovens, or for transporting the coke from the ovens, by means of tramcars propelled by steam engines or by electric motors, then the case of Woodward Co. v. Lewis, 171 Ala. 233, 54 So. 566, would be an authority for holding the track in question to be "a railway" within the meaning of the fifth subdivision of the Employers' Act. The track in this case was used, and intended to be used, as a part of the carriageway of one particular machine from one coke oven to another.

A tram track, on which logs are hauled to a sawmill and the lumber is hauled therefrom, by means of cars propelled or moved thereon by steam locomotive engines or electric motors, might be a railway, within the meaning of the statute; but the mere track or rails upon which the carriage moves the logs while they are being sawed are not a "railway," nor "a part of the track of a railway," within the meaning of the statute in question. Surely the track or way on which a steam shovel is moved while being operated is not a railway within the meaning of the statute; and, if it is not, then neither is the track here in question. It results that the judgment must be reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN, MAYFIELD, and SAYRE, JJ., concur.