L. Murray Alley, Leigh M. Clark, Birmingham, Ala., Cabaniss, Johnston, Gardner & Clark, Birmingham, Ala., of counsel, for appellants.

Jack J. Hall, James L. Shores, Jr., Schuyler A. Baker, Birmingham, Ala., Baker, McDaniel & Hall, Birmingham, Ala., of counsel, for appellees.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and McRAE, District judge.

McRAE, District Judge:

At about eleven-thirty o'clock in the morning of November 8, 1962, a tractor-trailer unit owned by Hewett Oil Company, Inc., (Hewett)1 and being driven, in the scope of his employment, by Roy Gordon McCurry collided with a Southern Railway Company (Southern) passenger train en route from Atlanta to Birmingham at a crossing near the line between Calhoun County and Talladega County, Alabama. The diesel locomotive pulling the train was leased by Southern from the New Orleans and Northeastern Railroad Company (NO&NE).

Southern brought suit against Hewett and McCurry, alleging negligence and demanding damages incurred in the repair of its cars. Hewett and McCurry denied negligence and alleged contributory negligence of Southern. The jury rendered a verdict for Hewett and McCurry. The trial court refused to enter a judgment notwithstanding the verdict and denied motion for new trial.

NO&NE brought suit against Hewett and McCurry, alleging negligence and demanding damages incurred in the repair of its locomotive. The trial court, on facts hereinafter examined, refused to allow the jury to impute the negligence of Southern to NO&NE. The jury rendered a verdict for NO&NE in the amount of $36,473.71.

The cases were consolidated for trial.

All parties appeal.

Inasmuch as the several appeals raise widely different questions of law, they will be separately considered.

Southern Railway Company v. Hewett Oil Company and Roy Gordon McCurry

This appeal is based solely upon the contention of Southern that the defendants were guilty of negligence either in not stopping, looking and listening before attempting to cross the railroad track or, if having stopped, in failing to see the approaching train; and that there was no substantial evidence that Southern was guilty of negligence proximately contributing to the collision.

The facts in the record relating to defendants' negligence are surely in dispute. McCurry asserts that he had stopped before attempting to cross the track, and an examination of the truck following the accident indicated that it was in low gear. A seventy-eight year old woman, who was an invalid, seated on her porch at a considerable distance from the crossing, saw the approaching truck and said she feared that there might be a collision. Although she could not actually see the crossing, she testified by deposition that the truck did not appear to be about to stop. Since the jury returned a verdict for NO&NE and against Hewett, it is clear that the jury resolved these conflicts in the evidence against Hewett.

The next question for consideration is whether Southern was guilty of negligence proximately contributing to the collision. The Court has examined the extensive record, and finds that there is testimony that the headlight on the locomotive was not lighted, that the train was traveling at a rapid rate of speed, that no signal was given as the train approached the crossing, and that fog and rain decreased visibility. The fact that there is evidence to the contrary simply means that the question was properly submitted to the jury under proper instructions of the Court. A more detailed examination of the facts would manifestly serve no useful purpose.

New Orleans and Northeastern Railroad Company v. Hewett Oil Company, inc.

Hewett seeks a reversal of the verdict and judgment rendered against it, and in favor of NO&NE, on three specifications of error,2 which basically involve the same issue: What was the relationship in the present case between Southern and its employees and NO&NE? In order to make a determination of this basic issue and the resulting legal problems, an examination must be made of the certain relevant parts of the record.

The Southern Railway System, a non-corporate entity, is the name given to the sixty-member 'family' which includes the Southern Railway Company, the Cincinnati-New Orleans and Texas Pacific Railroad Company, the Alabama Great Southern Railroad Company, the Carolina Northwestern Railroad Company, the New Orleans and Northeastern Railroad Company, and a good many smaller lines which were described by the assistant comptroller of Southern as 'class two carriers'. Although the executive offices of the various railroads are paid by checks issued by Southern, the entire payroll is pooled, prorated and 'participated in by the affiliated lines'.

Although the constituent members of the Southern Railway System constitute a 'family', it is plain from the record that the members of the family are separate entities. The so-called 'pools' which are referred to from time to time in the briefs and records were used not for the purpose of combining assets and liabilities of the various companies, but for the purpose of allocating accurately to each company the expenses actually incurred by it.

There are ten members of the board of directors of Southern Railway Company and nine members of the board of directors of NO&NE. D. W. Brosnan, president of both companies, is the only member of both boards.

At the time of the collision, the passenger train was being operated by employees of the Southern Railway Company and not by the Southern Railway System, over tracks owned by the Southern Railway Company.

The diesel locomotive involved in the accident, Locomotive 6911, was purchased, paid for and owned by NO&NE. Based upon the original cost and the depreciation, NO&NE received a fixed rental payment each month for the use of this locomotive by other companies that might make use of it during a particular month. Locomotive 6911 was in the possession of Southern Railway Company at the time of the accident under a valid rental arrangement.

NO&NE contends basically that under the law of Alabama two parties are not engaged in a joint adventure or joint enterprise unless each party has equal right to control the operation of the vehicle. This principle has been often and consistently stated by the Supreme Court of Alabama, from as early as 1889, in Elyton Land Co. v. Mingea, 89 Ala. 521, 7 So. 666. The test was well expressed in Crescent Motor Co. v. Stone, 211 Ala. 516, 101 So. 49, (1924), as follows:

'* * * The liability declared does not grow out of the relation of each to a common employer, the Crescent Motor Company, but out of their relations to each other in the operation of the car at the time of the accident. The basic fact is joint and equal control of the operation of the car, so that the man at the wheel was acting for the other as well as himself.'

See also Whidden v. Malone, 220 Ala. 220, 124 So. 516 (1929), Johnson v. Battles, 255 Ala. 624, 52 So. 2d 702 (1951), and Crouch v. DeLuxe Cab Co., 261 Ala. 239, 73 So. 2d 743 (1954).

The fact that the Alabama Supreme Court has generally had occasion to apply the law in cases involving the operation of automobiles appears to this Court to have no significant effect upon the operation of the principle.

Hewett's position is not strengthened by the apparent assertion that there was such a common economic interest between the Southern Railway Company and NO&NE as to transform and establish the relationship into a joint adventure or joint enterprise.

The Alabama cases support the rule, as urged by Hewett, that the contributory negligence of one person will be imputed to another where both are engaged in the joint pursuit of a common enterprise. Alabama Great So. R. Co. v. Hanbury, 161 Ala. 358, 49 So. 467 (1909). But this rule finds no application in the present case because of the absence of a joint adventure or joint enterprise.

It is our opinion that the learned trial judge fully, fairly and correctly charged the jury with reference to Hewett's liability to NO&NE.3

NO&NE urges that since Hewett did not squarely present to the trial judge the question of joint adventure, either at the trial or following the giving of the instructions, this question cannot now be raised on appeal. The thrust of this argument appears to be that Hewett had argued to the trial court that any negligence of Southern should be imputed to NO&NE on the theory that NO&NE was a dummy corporation and the Court should 'pierce the corporate veil' and accordingly impute to NO&NE the negligence of the employees of Southern. It is contended in effect that Hewett's argument on appeal that Southern and NO&NE were engaged in a joint adventure or joint enterprise was a belated afterthought, and cannot now be asserted by Hewett for the purpose of defeating the claim of NO&NE. This argument is based upon Rule 51, F.R.C.P.4 The purpose of Rule 51 is to ensure accuracy of instructions to juries, and to avoid the waste of time and money from reversals that result from oversight, technical omissions or remediable mistakes. The Court readily recognizes the importance of careful observance of the provisions of this rule. Conceptually, however, the argument of 'piercing the corporate veil' and 'joint adventure or joint enterprise', as they were presented to the jury by the evidence and instructions of the court, are sufficiently similar to enable the one to carry the other along. It follows, therefore, that there was substantial compliance with Rule 51, and the affirmance of Hewett's liability is squarely based upon failure of the evidence to establish the existence of a joint adventure or joint enterprise which would result in the imputation to NO&NE of the negligence of the employees of Southern.

The undisputed evidence in this case establishes that the total reasonable cost for the repair work properly required to be done upon Diesel Locomotive No. 6911 was $73,349.03. The jury returned a general verdict, for reasons both inscrutable and unexpressed, for NO&NE and against Hewett in the sum of $36,473.71. NO&NE accordingly contends that the trial court erred in overruling and denying the motion of NO&NE for judgment in the amount of $73,349.03, notwithstanding the verdict; or, in the alternative, in denying the motion of NO&NE for a partial new trial upon the issue of damages only.

Courts have shown an understandable wariness to apply to doctrine of additur, even where the verdict is manifestly and admittedly too small. As Mr. Justice Sutherland observed in Dimick v. Schiedt, 293 U.S. 474, 55 S. Ct. 296, 79 L. Ed. 603 (1935):