Alabama Steel & Wire Co. v. Tallant

51 So. 835, 165 Ala. 521, 1910 Ala. LEXIS 131

• Court: Supreme Court of Alabama
• Decided: January 20, 1910
• Status: Published

Opinion

MAYFIELD, J.

— The court gave the general charge on counts D and E, thus leaving for consideration counts A, Al, and F.

Count Al, as well as other counts, charges negligence in failing to provide reasonably safe cars, or locomotive or locomotive crane, or appliances, or instrumentalities, with which plaintiff was required to perform his work, etc. The court, at the request of the defendant, charged the jury (No. 24) that, if they were reasonably satisfied from the evidence that defendant furnished these appliances, they must find a verdict for defendant under count Al. It was, therefore, for the jury to determine. They found against the defendant, which necessarily disposed of count Al and the other counts.

The pleas to count A, on which the case was tried, were numbered from 8 to 13, inclusive — contributory negligence. The argument against count A is that it is vague, uncertain, and confused; hut we are impressed that it is not subject to such criticism, and was a good count under subdivision 3, '§ 1749, Code 1896 (Code 1907, § 3910). It charges, pertinently, all that this subdivision requires.

The defenses are the general issue and contributory negligence on the part of the plaintiff. The ninth plea sets up that a locomotive crane was used by defendant in switching cars on railroad tracks and unloading them; that,' in pushing said cars by said locomotive crane, a piece of timber three or four feet long was placed against and between the bumpers of a car and said crane, so that said crane would push the car by means of said piece of timber; that plaintiff wen t in between said crane and a car for the purpose of holding said piece of timber between them, and so negligently held said piece of timber that, when said crane was moved toward him and against said piece of timber, which caused plaintiff to jump or move, and to negligently place his foot on one of the rails of said track on which said crane was moving, or about to move, toward him, so that said crane ran over or against it, thereby inflicting said injuries. The other pleas set out the same facts as inducements: The tenth, that plaintiff negligently allowed his foot to remain on said track,until said crane ran over or against it and inflicted the injuries. The eleventh, that the danger of going between said crane and car, and holding said piece of timber between the bumpers, while said crane was pushing said car by means of said piece of timber, was obvious and patent to a person of ordinary intelligence; that, notwithstanding this, plaintiff negligently went between said crane and car for the purpose of holding said piece of timber, and while so between them was injured; and that plaintiff could have stood on said car and held said piece of timber where there would have been no danger of his receiving injuries. The twelfth is about to the same effect as the eleventh. And, thirteenth, that plaintiff could have stood on the ground or railroad ties, and not on said rail, and so held said piece of timber equally as well, and thereby have avoided the danger of being injured.

The evidence shows that the injuries occurred whilst plaintiff was attempting to execute the orders of Lee Wright, his superintendent, a person to whose orders he was hound to conform, by holding a piece of scant-ling between the bumpers of a locomotive crane and a flat or freight car. Whilst plaintiff was engaged in the execution of said order, the impact of the crane against the scantling cupped it, and cought plaintiff’s hand and mashed it, and, while he was attempting to disengage his hand from its painful position, the wheels of the locomotive crane caught his right foot and mashed it off.

The defendant insists, in a plea of contributory negligence, that the danger plaintiff encountered was an open and obvious one, and for that reason he is not entitled to recover, as he voluntarily assumed the risk. That question was submitted to the jury, and their finding was against defendant’s contention. If properly submitted to the jury, its insistence here is without force. The evidence, in some of its phases, shows plaintiff to have been an inexperienced man, and this was the second time he had attempted to hold a piece of wood between the bumpers of the crane and car end, and, the first time he held it, he was on the car and not on the ground. The superintendent testified that it was not a dangerous undertaking, a view the jury seems to have repudiated.

The question was one for the determination of the jury. In S. R. Co. v. Shields, 121 Ala. 460, 25 South. 811, 77 Am. St. Rep. 66, it was held that where a suit is brought against a railroad company for damages for personal injuries, and the plea of contributory negligence is interposed, if there is evidence tending to show negligence on the part of the company, and if the evidence fails to show, as a matter of law, that the plaintiff was guilty of contributory negligence, both the question of the negligence of the defendant and contributory negligence of plaintiff should be referred to the jury. “The attempt did not to his inexperience involve obvious danger, risks which a prudent man would, not incur, and he had a right to rely to some extent upon Rhyne’s (his superior’s) greater knowledge and experience, and upon the assumption that Rhyne would not expose him to unnecessary peril. The trial court properly left both questions, of negligence of Rhyne and contributory'negligence of plaintiff, to the jury.” Furthermore: “The servant does not stand on the same footing with the master. His duty is obedience, and if, when in the discharge of that duty, he is damaged through the neglect of the master, it is but meet that he should be recompensed. The essential inequality in the positions of the parties is deemed to warrant the deduction that a prudent man has a right, within reasonable limits, to rely upon the ability and skill of the agent in whose charge the common master has placed him, and is not bound at his peril to set his own judgment above that of his superior’. In other words, when a servant did not assert his judgment in opposition to the supposed better judgment or stronger will of the master, the law usually allows the jury to determine whether he was negligent, or acted in reliance upon the judgment of his master, or out of a constrained acquiescence in the rule of obedience, which his relation as servant imposed.” To the same effect is Thompson on Negligence, vol. 2, § 975. “The servant is not bound to prove that the injury resulted from the conformity to orders as causa causans, but merely that such conformity was the causa sine qua non of the injury.” — 2 Labatt, 2021.

It is urged that the injury to plaintiff was an accident. But this, also, was a question for the jury; and the court charged, at request of defendant, that, if the injury to plaintiff resulted from a mere accident or casualty, the plaintiff could not recover.

It is also charged, at defendant’s request, that, unless they were reasonably satisfied from the evidence that Lee Wright was negligent in giving the order to hold the timber as alleged in count A, the plaintiff could not recover under that count. The evidence shows, without conflict, that Wright knew the position of plaintiff, and had placed him in it, and, with such knowledge, backed the crane on him and injured him as charged in the complaint. As has been before stated, the court gave the general charge requested by defendant, on counts D and E, the ones Avhich charged wantonness on part of defendant. “The defendant requested the court to give Avritten charges numbered 1, 2, 8, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15, each of Avhich charges the court refused to give and to the refusal of the court to give each of said Avritten charges the defendant separately and severally then and there duly excepted.” There was no error in alloAving counsel to ask plaintiff if the catching of his hand by the scantling was painful to his hand. He had just testified, Avithout objection, that his hand was caught between the scantling and the crane, and that the scantling mashed it; that he tried to get loose, and in doing so he stepped upon one of the rails. There was no error here. The injury to the hand and its painfnlness was a part of the res gestae of the occurrence. The plaintiff alleged that his foot was crushed and bruised, and he was otherwise seriously injured and mashed, etc., and by reason of said injuries he suffered great mental and physical pain, and was disabled from working for a long time. Nor did the court err in allowing plaintiff to state that he was disabled to work. That was an element of the damage. It was a fact, and not a conclusion of the witness, as urged.

The question, the basis of the forty-eighth assignment of error, was not subject to the objection interposed to it. It tended to show the experience or nonexperience of the plaintiff in such matters, and that on the occasion referred to he was on the car, and here he stood on the ground.

Nor was there any error in allowing him to show that the kind of timber used on the first occasion was not the same as the scantling here used.

Other questions, the bases of assignments 50, 54, 55, 60, 64, 65, 66, 67, are so manifestly without merit as to require no separate consideration of them.

The oral charge of the court is not set out in the record, and what is alleged as a part of it was excepted to. Without the whole charge, one is unable to pass intelligently on any part of it. The court refers, in the part excepted to, to the rules he had given the jury in other parts of the oral charge.

Counts D and E were counts for wantonness, and, as before stated, the court, in charge 20% charged that the jury could not find a verdict for wantonness. This eliminated from their consideration these counts and all charges based on them. If Wright injured plaintiff after the discovery of his peril, the negligence of the plaintiff could not defeat a recovery, which the charge was calculated to mislead the jury into supposing would be the case.

Charge 2 was properly refused, as being argumentative. Charge 20, given for defendant, fully covered the question of plaintiff’s alleged contributory negligence.

Charge 3, requested for defendant, is subject to the same vice as charge 1, condemned above. Whenever the negligence of the plaintiff becomes the proximate cause of his injury, the negligence of defendant ceases any longer to he the proximate cause of the injury.

Charge 4 is bad. It omits the predicate that plaintiff could do the work he was ordered to do by selecting the safe way. — B. C. M. Co. v. Parker, 134 Ala. 302, 32 South. 700. Furthermore, the charge was substantially covered by given charge 18, for defendant

Charge 5 was properly refused. Lee Wright was the sueprintendent, and plaintiff had the right to rely on his judgment, unless the danger was so open and obvious that no prudent man would encounter it — a fact the jury did not believe existed. Whether Wright would encounter it.or hot could make no difference.

Charge 6 singles out a particular part of the evidence, and gives prominence to it, and was calculated to mislead.

Charge 7 is faulty. The evidence tends to show that he was a- man of limited experience in such matters, and the danger, although apparent, might not have been so glaring as that a person like himself would refuse, against- the orders of his superior, to encounter it. This ignores all questions as to subsequent negligence, after discovery of peril.

For like reasons charge 8 was properly refused.

Charge 9 was the general charge for the defendant: It needs no discussion to condemn it.

From what has already appeared, charge 10 was an improper instruction. Moreover, it was substantially covered by given charge 18.

Charge 11 singles out and makes prominent a single part of the evidence. Given charge 22 instructed fully as to the alleged accident or casualty, and told the jury that, if the Occident thus resulted and could not have been reasonably foreseen by ordinary diligence, the plaintiff could not recover.

Charge 12, for like reasons, was properly refused.

Charge 13 is bad. It does not cover the entire count Al, and tends to mislead. Although the jury might believe defendant furnished plaintiff with a piece of timber with which to make the coupling, it was for the jury to say, under the evidence, that this was not a safe appliance. Charge 21 properly submitted this matter to the jury, as to the locomotive and crane, and in effect, was the general charge on count Al. The charge refers specially to safe cars, or locomotive or locomotive crane, and makes no mention of- other appliances or instrumentalities with which the plaintiff was to work in pursuing his labors as an employe, which the count, avers was not done.

Charge 11 was misleading, in asking that a verdict be found for defendant, if simply the locomotive or crane was reasonably safe. Under it, it would make no difference how negligent the defendant was in furnishing plaintiff cars or appliances or instrumentalities with which to work, if it simply furnished a reasonably safe crane, and makes no reference to the negligence of Wright in giving orders or in exercising superintendence.

Charge 15 is misleading. The giving of an order which is dangerous to execute is negligence, and defendant is responsible for the injuries flowing from such negligent order. Lee Wright was not bound to anticipate that plaintiff’s hand would be pinched, in giving an order dangerous and calculated to injure another. to render the defendant liable. If he was bound to an-ticipate the exact manner in which the injury might occur, then the defendant ivould be responsible if the order was negligently given. The ivhole question Avhether the injury was an accident or not ivas properly submitted by the court to the jury, in given charge 22.

We cannot say that the court erred in refusing to grant a new trial.

The opinion in this case was prepared by Justice Haralson, and Avas adopted by the court.

Affirmed.

Doaa’dell, C. J., and Simpson and McClellan, JJ., concur.