SIMPSON, J.
This was an action by an employe, for.damages, on account of personal injuries received from the breaking of a bridge or walkway over a ditch or trench.
The first assignment of error raises the question of [124]*124the correctness of the action of the court in overruling defendant’® demurrer to the complaint. The 1st, 2nd, 3rd and 4th clauses, set out in the amendment to the demurrer, raise the point as to whether the complaint was defective in not specifically describing the nature of the defect in the bridge. These causes of demurrer were not well taken, and there is no error in the action of the court in overruling them. — E. E. Jackson v. Lola Cunningham, decided at the present term of this Court.
2. The causes of demurrer No. 1, 4, 5 and 6, set forth in the amendment to the demurrer, assert the proposition that the complaint does not aver or show that said bridge was a paid; of the ways, works, or machinery.
The case of Co. Pac. Ry. Co. v. Davis, 92 Ala. 306, where the allegation was that “The defendant, by its neglect and want of care, allowed its roadway to be and become greatly out of repair,” etc., “And by reason thereof the plaintiff * * * * was violently struck against a projecting rock,” this Court says, “It would require a good deal of ingenuity to draw, from these facts, any other conclusion * * * than that the defect in the roadway consisted in the projection of the rock so nearly to passing cars as to strike brakeman.”
In the complaint, now under consideration, it is alleged that said bridge gave way, etc., “By reason * * * of a defect in the condition of the ways, works, etc.,” (using the statutory language) and adding, “Viz; said bridge, or walkway was weak, insecure or otherwise defective.”
We think the language of the case just quoted applies, and consequently there was no error in overruling these causes of demurrers.
(3) For the same reason causes 2 and 3, in said amendment to the demurrer, are not well taken.
(4) The 7th cause of demurrer does not seem to be insisted on, in the brief of counsel for appellant, and we see no error in the action of the court thereon.
[125]*125(5) The 8th cause of demurrer is not insisted on, in the brief of counsel for appellant.
(6) The second assignment of error relates to the refusal of the court to give the general charge in favor of defendant. The plaintiff himself was the only witness in his- behalf, and, according to his testimony, there was a bridge or walkway composed of two planks, each twelve or fourteen inches wide, bolted together, over a ditch supposed to- be six or eight feet deep, over which he and other employes were in the habit of going to a water barrel, on the other side of the ditch, though they could walk around the head of the ditch by going “The length of the shed.” Plaintiff had been over this bridge or walkway a number of times that night, but, at the time complained of, the edge of the plank under his left foot split off, and he fell and received the injury complained of. He had not noticed anything wrong with the bridge before, but examined it after the accident and found that the plank had split off from time to- time. The part that split off had worn thin from walking on it. There was no trouble for a man, who would go there to examine it, to have seen this, if he had looked under the plank, or to know it by feeling it. Witness could not tell what the thickness of the planks were originally, nor how thick at the time of the accident. ' At this time (of accident) it might have been three fourths of an inch or one inch, but the witness says “Honestly” lie does not know, but knows it was insufficient to bear his weight.
The bridge was used before, and continued to be used sometime after, the accident and did not breale with any one else.
Witness for defendant stated that the bridge or walkway was placed there for the “Catcher” who had to go-round in quick time, that, in going to the water barrel, one could avoid the bridge and go round on the ground by going five feet further; that the chipped off place had been that way for some time, but that it chipped off only at the end where the plank rested on the ground, and not over the ditch at all; that there was no indication of any recent break or chipped place; that two electric lights [126]*126made it easy to see the plank at night; that the ditch was four feet wide, and the planks five and a half or six feet long, and one of the witnesses, who was the “Catcher,” stated that, some time after the accident, he was going over the bridge, and, just having come from looking at the molten metal, his eyes were so blinded that he could not see the bridge and came near missing his foot-hold, and he told the boss if he got hurt there “There would be something doing;” he supposed that one of the planks was a foot wide and the other a quarter of a foot.
A new bridge was substituted for the old one. The new one was one plank sixteen inches wide and one and a half or two inches thick.
(7) In deciding upon the question of giving the general charge for the defendant, the view of the testimony most favorable to the plaintiff must be taken, and, if there is any conflict, the statements of the plaintiff must be considered the true account of the facts.
The burden of proof is upon the plaintiff to show the defect, and to show that it “Arose from, or had not been discovered or remedied, owing to the negligence of the master or employer, or some person in the service of the master or employer and entrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition.” — Code of 1896 § 1749; Seaboard Mfg. Co. v. Woodson, 94 Ala. 143, 147; s. c., 98 Ala. 378. 382; U. S. Rolling Stock Co. v. Weir, 96 Ala. 397; L. & N. R. R. Co. v. Davis, 91 Ala. 487.
While there is no direct proof as to how long the bridge, was in a dangerous condition, nor that such condition was known to, or could, by ordinary care, have been discovered by the employer, or some person in'his service charged as the statute prescribes. Yet the Court holds that, inasmuch as the testimony of the plaintiff shows that the break occurred by reason of the fact that the plank had become so worn by constant use a's to be dangerous, and that this condition could have been discovered by an inspection of the bridge, it was a question for the jury to consider, as to how long it had been in such condition and whether it was known or could have been known, by the exercise of ordinary care. There was [127]*127no error in tlie refusal of the court to give the general charge in favor of the defendant.
(8) The third assignment of error is sustained. The answer of the witness was to a question which had been decided by the court to be illegal, and was also irrelevant to the issues of this case.
(9)# The charge referred to in the 4th assignment of error did not relate to an inquiry material to the issue before the court, and was properly refused. — Crawford, Admr. v. Jones, 54 Ala. 459, 462.
(10) Charge No. 2, requested by defendant, was abstract, there being no testimony to the effect that the planks were placed across the ditch for a temporary purpose.
(11) Charge No. 3 was properly refused for the same reason stated in reference to 4th assignment of error.
Free access — add to your briefcase to read the full text and ask questions with AI
SIMPSON, J.
This was an action by an employe, for.damages, on account of personal injuries received from the breaking of a bridge or walkway over a ditch or trench.
The first assignment of error raises the question of [124]*124the correctness of the action of the court in overruling defendant’® demurrer to the complaint. The 1st, 2nd, 3rd and 4th clauses, set out in the amendment to the demurrer, raise the point as to whether the complaint was defective in not specifically describing the nature of the defect in the bridge. These causes of demurrer were not well taken, and there is no error in the action of the court in overruling them. — E. E. Jackson v. Lola Cunningham, decided at the present term of this Court.
2. The causes of demurrer No. 1, 4, 5 and 6, set forth in the amendment to the demurrer, assert the proposition that the complaint does not aver or show that said bridge was a paid; of the ways, works, or machinery.
The case of Co. Pac. Ry. Co. v. Davis, 92 Ala. 306, where the allegation was that “The defendant, by its neglect and want of care, allowed its roadway to be and become greatly out of repair,” etc., “And by reason thereof the plaintiff * * * * was violently struck against a projecting rock,” this Court says, “It would require a good deal of ingenuity to draw, from these facts, any other conclusion * * * than that the defect in the roadway consisted in the projection of the rock so nearly to passing cars as to strike brakeman.”
In the complaint, now under consideration, it is alleged that said bridge gave way, etc., “By reason * * * of a defect in the condition of the ways, works, etc.,” (using the statutory language) and adding, “Viz; said bridge, or walkway was weak, insecure or otherwise defective.”
We think the language of the case just quoted applies, and consequently there was no error in overruling these causes of demurrers.
(3) For the same reason causes 2 and 3, in said amendment to the demurrer, are not well taken.
(4) The 7th cause of demurrer does not seem to be insisted on, in the brief of counsel for appellant, and we see no error in the action of the court thereon.
[125]*125(5) The 8th cause of demurrer is not insisted on, in the brief of counsel for appellant.
(6) The second assignment of error relates to the refusal of the court to give the general charge in favor of defendant. The plaintiff himself was the only witness in his- behalf, and, according to his testimony, there was a bridge or walkway composed of two planks, each twelve or fourteen inches wide, bolted together, over a ditch supposed to- be six or eight feet deep, over which he and other employes were in the habit of going to a water barrel, on the other side of the ditch, though they could walk around the head of the ditch by going “The length of the shed.” Plaintiff had been over this bridge or walkway a number of times that night, but, at the time complained of, the edge of the plank under his left foot split off, and he fell and received the injury complained of. He had not noticed anything wrong with the bridge before, but examined it after the accident and found that the plank had split off from time to- time. The part that split off had worn thin from walking on it. There was no trouble for a man, who would go there to examine it, to have seen this, if he had looked under the plank, or to know it by feeling it. Witness could not tell what the thickness of the planks were originally, nor how thick at the time of the accident. ' At this time (of accident) it might have been three fourths of an inch or one inch, but the witness says “Honestly” lie does not know, but knows it was insufficient to bear his weight.
The bridge was used before, and continued to be used sometime after, the accident and did not breale with any one else.
Witness for defendant stated that the bridge or walkway was placed there for the “Catcher” who had to go-round in quick time, that, in going to the water barrel, one could avoid the bridge and go round on the ground by going five feet further; that the chipped off place had been that way for some time, but that it chipped off only at the end where the plank rested on the ground, and not over the ditch at all; that there was no indication of any recent break or chipped place; that two electric lights [126]*126made it easy to see the plank at night; that the ditch was four feet wide, and the planks five and a half or six feet long, and one of the witnesses, who was the “Catcher,” stated that, some time after the accident, he was going over the bridge, and, just having come from looking at the molten metal, his eyes were so blinded that he could not see the bridge and came near missing his foot-hold, and he told the boss if he got hurt there “There would be something doing;” he supposed that one of the planks was a foot wide and the other a quarter of a foot.
A new bridge was substituted for the old one. The new one was one plank sixteen inches wide and one and a half or two inches thick.
(7) In deciding upon the question of giving the general charge for the defendant, the view of the testimony most favorable to the plaintiff must be taken, and, if there is any conflict, the statements of the plaintiff must be considered the true account of the facts.
The burden of proof is upon the plaintiff to show the defect, and to show that it “Arose from, or had not been discovered or remedied, owing to the negligence of the master or employer, or some person in the service of the master or employer and entrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition.” — Code of 1896 § 1749; Seaboard Mfg. Co. v. Woodson, 94 Ala. 143, 147; s. c., 98 Ala. 378. 382; U. S. Rolling Stock Co. v. Weir, 96 Ala. 397; L. & N. R. R. Co. v. Davis, 91 Ala. 487.
While there is no direct proof as to how long the bridge, was in a dangerous condition, nor that such condition was known to, or could, by ordinary care, have been discovered by the employer, or some person in'his service charged as the statute prescribes. Yet the Court holds that, inasmuch as the testimony of the plaintiff shows that the break occurred by reason of the fact that the plank had become so worn by constant use a's to be dangerous, and that this condition could have been discovered by an inspection of the bridge, it was a question for the jury to consider, as to how long it had been in such condition and whether it was known or could have been known, by the exercise of ordinary care. There was [127]*127no error in tlie refusal of the court to give the general charge in favor of the defendant.
(8) The third assignment of error is sustained. The answer of the witness was to a question which had been decided by the court to be illegal, and was also irrelevant to the issues of this case.
(9)# The charge referred to in the 4th assignment of error did not relate to an inquiry material to the issue before the court, and was properly refused. — Crawford, Admr. v. Jones, 54 Ala. 459, 462.
(10) Charge No. 2, requested by defendant, was abstract, there being no testimony to the effect that the planks were placed across the ditch for a temporary purpose.
(11) Charge No. 3 was properly refused for the same reason stated in reference to 4th assignment of error.
(12) The 7th assignment of error claims that the court erred in refusing charge No. 4, requested by defendant, but the record does not show any such charge refused.
(13) Charge six, requested by the defendant, was properly refused because it is not a material inquiry who furnished the water. While the mere act of getting-water is not a part of the “Duties” of the employe, yet it is a physical necessity which must be attended to while the employe is engaged in his duties, and he is entitled to the same protection, in the interval when he leaves his work to get water, as when he is actually working, and, whether the water is provided by the employer or by himself, the employe has a right to pass over the “Ways,” provided by the employer, in going to and from the place where his thirst is slaked.
(14) The same reasons show that there was no error in the refusal of charge No: 7, requested by defendant.
(15) Upon the question of the refusal of the court to grant the motion for a new trial. The testimony of plaintiff seems to be entirely uncorroborated by any other witness. He could not remember the name of the lady with whom hé boarded, nor the physician who came to see him that night. The only persons whom he doe's [128]*128identify are the witnesses, Chambers, the “Catcher,” Williams, at the rolling mill, and Dr. Fox, at the almshouse. He states that, after the accident, he sat down, rubbed his knee awhile, and went back to work; that the men were waiting for some metal to be heated, and he thinks he told Williams that he fell, and knows that Williams saw him, because, as he' was struggling to get up, Williams spoke to him, saying, “Be careful or you will kill yourself,” or, “Hurt yourself.” Williams says that they worked together that night, worked only about two hours, when work ceased, and he and plaintiff remained there an hour or an hour and a half, that they ate together the -supper which had been left by the “Boss,” and went home, and he heard nothing about the accident, and knew nothing of plaintiff being hurt, until five to seven months after when he met him and he was limping.
• Plaintiff states that he left the alms-house because Dr. Fox told him that he wTould have to have his leg cut off or leave.
Dr. Fox says there never was anything said about cutting his leg off, that he did not consider the sprain serious, did not even order any liniment for it, and plaintiff left of his own- accord. The matron at the alms-house says it did not seem to be a bad sprain; that, if anything had been said about his having been hurt at the rolling mill, she would have heard it; that she heard nothing of that-kind, but did hear that he drank a good deal and probably fell from the dummy; that she was satisfied ' that he did not claim to be injured at the rolling mill, but that he claimed to- have been by the street railway. The witness Chambers contradicts him about the split place on the bridge. Chambers stating that he examined the bridge after the accident, and that there was no recent split on it, the only split being an old one, not over the ditch at all, but on the end of the plank where it was resting on the ground.
Under the circumstances, we think the great weight of the evidence is opposed to the verdict- of the jury and the new trial should have been granted. — Birmingham Elec. Ry. v. Doss, 131 Ala. 177; Birmingham Elec. Ry. [129]*129v. Clay, 108 Ala. 233, 238; Birmingham Ry. Light & Power Co. v. Owens, 135 Ala. 154.
For the errors pointed out the judgment of the court is reversed and the cause remanded.
McClellan, C. J., Tyson and Anderson,; J.J., concurring.