Harbison-Walker Refractories Co. v. Knight

76 So. 414, 16 Ala. App. 177, 1917 Ala. App. LEXIS 233

• Court: Alabama Court of Appeals
• Decided: June 30, 1917
• Docket: 7 Div. 475.
• Status: Published

Opinion

BROWN, P. J.

[1] Count B of the complaint, which is framed under subdivision 3 of section 3910 of the Co.de of 1907, was not subject to the ground of demurrer assigned, and the ruling of the court thereon was free from error. Reiter-Connolly Mfg. Co. v. Hamlin, as Adm’r, 144 Ala. 192, 40 South. 280; Sloss-Sheffield Steel & Iron Co. v. Dobbs, 187 Ala. 452, 65 South. 360; Alabama Consolidated C. & I. Co. v. Heald, 171 Ala. 263, 55 South. 181; L. & N. R. R. Co. v. Bargainier, 168 Ala. 567, 53 South. 138; Alabama Steel & Iron Co. v. Tallant, 165 Ala. 521, 51 South. 835; Tenn. Coal, I. & R. R. Co. v. Williamson, 164 Ala. 54, 51 South. 144.

Count C avers that Eason was intrusted with superintendence over the work and the men engaged in the work, and it was negligence for him to create or allow such condition of things to exist as would render injury to one of the employés under him probable, through the means of an intervening agency. Sloss-Sheffield Steel & Iron Co. v. Green, 159 Ala. 182, 49 South. 301; Tenn. Coal, I. & R. R. Co. v. George, 161 Ala. 422, 49 South. 681; Louisville & Nashville R. R. Co. v. Handley, 174 Ala. 593, 56 South. 539.

[2] Pleas of assumption of risk are not good to counts under subdivisions 2 and 3 of the Employers’ Liability Statute (Code 1907, § 3910). L. & N. R. R. Co. v. Handley, supra. Pleas 2 and 3 were pleas of assumption of risk, and the demurrers were properly sustained.

There was evidence tending to support both counts B and C, and the affirmative charges as to the whole case and as to the separate counts were refused without error.

[3] Charge 8 was properly refused. The law does not define “ordinary inspection,” but imposes on the defendant’s superintendent the duty of using ordinary and reasonable care to conserve the safety of the other employes under him. Sloss-Sheffield S. & I. Co. v. Green, supra.

[4] Charge 10 ignores .the issue presented by count B, and was therefore calculated to mislead the jury. It was also bad for requiring the jury to he “satisfied.” Reasonably satisfied is all the law requires. U. S. F. & G. Co. v. Charles, 131 Ala. 658, 31 South. 558, 57 L. R. A. 212; Southern Ry. Co. v. Riddle, 126 Ala. 244, 28 South. 422.

There was evidence which, if believed, authorized the verdict rendered, and we do not: feel authorized to overturn the finding of the jury and the, order of the trial court overruling the motion for a new trial. Southern Ry. Co. v. Kirsch, 150 Ala. 659, 43 South. 796.

Affirmed.