Tobler v. Pioneer Mining & Mfg. Co.

52 So. 86, 166 Ala. 482, 1909 Ala. LEXIS 463

• Court: Supreme Court of Alabama
• Decided: December 21, 1909
• Status: Published

Opinion

MAYFIELD, J.

We will now apply this evidence to this case, and see if it tended to prove, or if it authorized the jury to infer, the truth of every material averment of any one count of the complaint. If so, the giving of the general affirmative charge in this case was error.

The first count, among other material' averments, alleges that the death of the plaintiff’s intestate was the result of defects in the condition of defendant’s ways, works, machinery, etc., used in connection with its business ; that the incline railway was defective, the means and appliances for stopping and preventing the car from falling into the furnace were defective, and said hoisting engine was defective. This count, it will be •observed, alleges several defects conjunctively, consequently it was necessary to prove, or to introduce evidence tending to prove, all of the defects. There was not a particle of evidence that the engine was defective, but it affirmatively appears that it was in good condition. It affirmatively appears by the plaintiff’s own evidence that the engineer, whose duty it was to operate it and who was operating it on that day, could stop the car at any time and at any place he pleased. Consequently, it affirmatively appears that there was no defect in the appliances for stopping said car. Nor did the evidence show any defect whatever in the ways, works, or machinery of this plant within the meaning ■of the statute. It affirmatively and conclusively appeared by the plaintiff’s own evidence that this furnace was not being operated at the time of the injury; that the incline tramway and cars necessarily were not used at the time for the purpose for which they were built and intended, but for the incidental purpose of repairing the furnace or relining it. The evidence affirmatively showed that the tramway, car, and device for operating it were in good condition for the purpose of op•erating the furnace — the purpose for' which it was intended. All the evidence showed that it was necessary to take up the rails of the tramway from across the top of the furnace in order to take out the bell and hopper preparatory to doing the repair work or relining the furnace. These rails were not put across the top of the furnace tb keép the car from falling into the furnace, but it conclusively appears that they were put there for the purpose of running the car over the top of the furnace so that the contents of the car could be dumped into the furnace. It conclusively appears that the rails were not needed across the top of the furnace until it was ready to resume operations. This we think is perfectly obvious to any person. It is true that some of the witnesses said the rails could have been put back after the bell and hopper had been removed,' and then again have been taken out when the bell and hopper were to be put back in the furnace, and then again replaced after the bell and hopper had been let down; it also appeared that if the rails had been across the top of the furnace the car would not have fallen. It Avas also testified by some of the witnesses that stop or chock blocks could have been put at the end of the tram lines and at the edge of the top of the furnace to prevent the cars from running into the furnace while it Avas open, but the evidence did not show that it was necessary or proper in relining the furnace or in the repair of it, but, on the other hand, to our minds it conclusively shows that they would have been obstructions rather than benefits in repairing the furnace as it was being repaired.' This was affirmatively shown by the evidence of some of the Avitnesses, was not denied by any, and it would not be reasonable to suppose that they were necessary or proper in carrying on this repair work, but that they would be obstructions and hindrances. Consequently the failure to run a track across the top of the furnace or to chock blocks or deadmen at the ends of the tramway at the top of the furnace cannot be said to have constituted a defect in the ways, works, and machinery within the meaning of the statute. We are not unmindful of the evidence in this case that if this track had been built across the top of the furnace or if the dead-man or chock block had been erected as it was shown that it could have been done, the injury would not have happened; but this is far from showing that a failure to do this constituted a defect in the ways, works, and machinery of this plant, at this time and on this occasion; but, on the other hand, it affirmatively shows that their erection during the repair would have been an obstruction. The deadmen or chock blocks, or the track across the top of the furnace, would without doubt have prevented the injury, but their absence did not occasion the injury; it merely constituted a condition upon which another wrongful act operated to produce the injury. The master cannot be held to have anticipated this accident, nor can it be held to have provided against it more than it did. If a strong net had been stretched across the top of the furnace, this would have prevented the injury; if the tram track had been taken up clear to the ground, it would have prevented the injury; if the plaintiff had provided an elevator, such as is used in hotels, to carry its employes to the top of the furnace, it might not have happened; but the absence of these provisions certainly did not constitute actionable negligence. As will be more fully shown hereafter the wrongful act which caused the injury was that of an intruder, some person who acted without right or duty, and so far as this record shows, is unknown. It was this act of this unknown person, in elevating the car upon the incline, instead of stopping it where it should and could have been easily stopped, avoiding the injury, and then either negligently or intentionally running it to the middle of the furnace, and dumping it and its contents to the bottom of the furnace below. It is the law of this state, of England, and of other states, and is well settled, that the duties of the master to his servants who are engaged in preparing or collecting material to construct' or repair the ways, works, ■or machinery of the plant, and putting it in suitable condition for use for the carrying on of the master's business, are not the same as the duties he owes to his servants who are using such ways, works, machinery, etc., after the construction or repairs are completed and the business of the master is in operation; and that servants who are engaged in this construction or repair work of the plant of the master assume the risks which are obviously incident to the work of construction or repair. They are not allowed to complain of the ways, works or machinery as being- defective, when that defect is the very reason or the very cause of the servant’s being there and at work, upon the occasion. The duty which originally rests upon the master to furnish safe ways, works, and machinery, for the time being and for the purpose of construction or repair, is suspended. It would he unreasonable to hold the master to the same degree of strictness, while he is constructing his plant or repairing the ways, works, or machinery, as is required of him after he has constructed, or after the repairs have been completed, and the plant is in operation. If it were otherwise, the master could not with safety repair or remedy a defect. Of course this rule of law, like others, has its limitations. It is not contended by the authorities on this subject, nor is it attempted to be decided here, that the master is never liable to the servant for an injury received while engaged in repairing or remedying the ways, works, or macliinery of the master, hut it is decided that the same rules will not apply in the construction or repairing of the ways, works, or machinery that apply after the completion of repairs and during operation.—Labatt on Master and Servant, § 29 et seq.

The mere fact that the master has omitted to. provide means to avoid injury does not make the master responsible in the absence of proof of negligence. In the absence of actionable negligence on the part of the master, an accident to the servant must be regarded as one of the hazards of the employment of which the servant takes the risk. When the master has done everything that the law requires of him to do to insure and maintain the safety of his servant, any risk which the employment otherwise involves is not assumed by him, nor should he he made liable therefor. The final question to be determined, in every case of an action by the servant against the master as such, is this: Was the master guilty of a breach of duty to the servant who brings the action? The duty of the master to his servant, arising from the contract of employment, is either express or implied, consequently the master’s liability to his servant as such is limited to those obligations and those duties which arise under the contract and which he has either expressly or impliedly agreed to.—Jones v. Granite Mills Co., 126 Mass. 84, 30 Am. Rep. 661; Mensch v. Pa. Co., 150 Pa. 598, 25 Atl. 31, 17 L. R. A. 450; Hough v. Texas Co., 100 U. S. 213, 25 L. Ed. 612; Ford v. Fitzburg, 110 Mass. 240, 14 Am. Rep. 598; Farwell v. Boston Co., 4 Metc. (Mass.) 49, 38 Am. Dec. 339; Harrison v. Central R. Co., 31 N. J. Law, 293. As was said by the learned Chief Justice Stone, of this court in Mutch's Case, 97 Ala. 196, 11 South. 895 (21 L. R. A. 316, 38 Am. St. Rep. 179) : “To constitute actionable negligence there must be hot only causal connection between the negligence complained of and the injury suffered, hut the connection must be by a natural and unbroken sequence without intervening efficient cause, so that, but for the negligence' of the defendant, the injury would not have occurred. It must not only he the cause, but it must be the proximate -cause; that is, the direct and immediate efficient cause of the injury.”

We do not decide that any negligence on the part of the master was shown in this case, nor do we decide that there was an evidence tending to show that the master was guilty of any negligence, or that he was liable or answerable for the negligence of the party who committed the wrong which resulted in the injury. But we do decide that if it can be said that the master was guilty of actionable negligence, such negligence was not the proximate cause, it was not the direct and immediate efficient cause of the injury. As to this proposition, we do not think there can be a doubt. In Mutch’s Case it was conceded by the court that the railroad company -was guilty of negligence in running the train at a greater rate of speed than was provided by law, but the plaintiff, who was a boy 12 or 14 years of age, of average intelligence, attempted to climb the ladder of a freight car and was injured. Judge Stone held that in that case the negligence of the railroad company was not the proximate cause of the injury. Then much more so must it be in this case, when it indisputably appears that the direct cause of this injury was the negligent or wrongful act of some person running the car up the incline and dumping plaintiff’s intestate into the furnace. It affirmatively appeared by the plaintiff’s own evidence that the defendant did not do it, and that no agent of defendant, authorized to act for it, did it, but it affirmatively appeared from the plaintiff’s own evidence that it was done hv an unknown intruder, interloper, or intermeddler, against whose wrongful acts the defendant company could not be held to have provided. It is true, as we have said above, that if the chock blocks had been at the end of the track, or if the track had extended across the top of the furnace, the injury would not have resulted, and the master could have provided the chock blocks and could have extended the tracks across the furnace, and, if this had been done, the injury would not have resulted, yet his failure to do this was not and could not be held to be actionable negligence. The injury was the saddest and most deplorable that could have happened, but the facts do not show that the master can be held liable. He could not have anticipated it, nor could he reasonably have been expected to provide against it. If the master had had no furnace, if he had never employed plaintiff’s intestate, if he had taken down the tramway to the ground, if he had not fired up the engine on the morning of the accident, if he had put a net across the top of the furnace while it was being repaired, the sad and deplorable accident would not have happened, but certainly his failure to do any one of these does not and should not make him liable.

A wrongful act of independent third persons (it conclusively appears that this was such, though they, may have been the servants of the master), not actually intended or reasonably to be expected by the master, is not the consequence of the master’s wrong, and he is not. bound to anticipate the general probability of such acts.—Burt v. Advertiser Co., 154 Mass. 238, 28 N. E. 1, 13 L. R. A. 97. The act of the person in elevating the car upon the incline and dumping it into the furnace, which unquestionably resulted in the injury complained of, was a trespass upon the rights of the defendant as well as those of the plaintiff, though it may have been the act of the master’s servant. The master could not foresee or reasonably anticipate, and he was not required to anticipate or to provide for, violations of the law of trespass upon his property, by other persons or by his own servants. They were not employed by him for this purpose, and were not authorized to perform it. They were not shown to be incompetent for the purposes and work for which they were employed. It is true that the master is liable in damages for an injury negligently or intentionally inflicted by his servants upon others, third persons, or upon other servants in certain cases, but in order for him to be liable the negligent or wrongful act of the servant must be within the scope or line of employment, and the master may sometimes be liable, though the wrongful act was done by his servants in express disobedience to the master’s order, but he is not liable unless the act was within the line or scope of employment. • In some degree the same rule holds as with principal and agent. The rule has been clearly expressed by our court as follows: “If the employe, while acting within the line and scope of the employment, do an act injurious to another, either through negligence, wantonness, or intention, then for such abuse of authority conferred upon him or implied in his employment, the master or employer is responsible in damages to the person thus injured. But if the servant or agent g'o beyond the range of his employment or duties, and of his own will do an unlawful act, injurious to another, the agent is liable, but the master is not.”—Gilliam v. R. R. Co., 70 Ala. 268; Goodloe v. Memphis Co., 107 Ala. 233, 18 South. 166, 29 L. R. A. 729, 54 Am. St. Rep. 67.

It conclusively appears from the evidence in this case that whoever pulled the lever and propelled the car and dumped it into the furnace, the cause of the injury, did so without right or authority from the defendant company; and if it was done by one of the defendant’s servants or agents, it affirmatively appears from the plaintiff’s own evidence that it was not within the line or scope of the employment, and for this reason the defendant could not be liable to the plaintiff for the death of the intestate who was another servant. That is to say, it conclusively appears that the wronful act, the cause of the injury, was not the result of any actionable negligence or intentional wrong on the part of the defendant or of any agent or servant of it, acting within the line or scope of his employment, without which there could be no liability on the part of the defendant.

The second count of the complaint, among other things, charges that the death of the intestate was caused by the failure of the defendant to provide a careful and competent engineer, and its negligence in allowing said engine to be operated by said incompetent negro boy Jim Doolittle. The evidence not only fails to prove this allegation, but the plaintiff’s own evidence affirmativley disproves it.

The fifth count charges that the defendant, by its servants who were making such repairs on said furnace did recklessly, wilfully, and wantonly dump said deceased into said furnace and kill him. It certainly cannot be contended that there was any evidence to prove this count of the complaint. There was certainly no proof of the defendant’s actual participation in this wrongful act as alleged, and there was no evidence to show that it authorized or ratified the wrongful act, but it affirmatively appears by the plaintiff’s own witness that the defendant had no knowledge of the fact that it was or could be done;

This disposes also of the sixth count for the same reasons, and what has been said of the first and fifth counts disposes of the seventh count.

The eighth count contained an allegation that intestate was killed by reason of the negligence of a person to whose order or directions he was then and there bound to conform and did conform. There was no direct evidence, nor any from which an inference could well be drawn that any orders or directions had been given to the intestate, or that he was conforming to any orders or directions when he was killed.

As we have stated above, it did not appear that any order or direction whatever was given to him upon this occasion; but if it could be said, as contended by counsel for appellant, that the direction or order from McLaughlin or the negro Brooks to bring the articles to him, it certainly cannot be contended that this was a negligent order, or that he was guilty of any negligence in giving it, and the plaintiff proved by the witness Mylam himself that he had charge and control of the hoisting engine, and of the tramway at the time, and the plaintiff proved by him conclusively that there was no negligence on his part as was alleged in the ninth count of the complaint. It conclusively appears from the evidence that the negligence was not on the part of a person who had charge or control of that hoisting engine, but was the result of the negligence or intentional wrongful act of a person who meddled with the engine, but who did not have charge or control of it, nor any duty to perform in. connection with it.

As to the allegations in the tenth count of the complaint, that the defendant negligently and carelessly allowed Jim Doolittle, an ignorant, incompetent, and inexperienced negro boy, to take charge of the hoisting engine, and that he negligently and carelessly hoisted the car to the top of the furnace, and also as to the averment that the death of the intestate was caused by one Kiser, the defendant’s general manager, in intrusting Doolittle with charge or control of the hoisting engine, they are absolutely unsupported by the testimony, in fact the plaintiff’s witness affirmatively proved the contrary.

As to the eleventh count, which contained an averment that it was caused by reason of the act or omission of a person in the employ of defendant, in obedience to the rules and regulations or by-laws of the defendant, .and in obedience to instructions given by a person delegated by the authority of the defendant in that behalf, in that he-allowed Jim Doolittle, an incapable negro boy, to have control of the hoisting engine, the evidence does not show that Doolittle had charge or control of the hoisting engine, but affirmatively shows that he did not have charge or control of it, and it affirmatively appears that if he did handle it at the time he did so without authority, express or implied, and without the Imowledge or consent of the defendant or any one authorized to consent to it; and if all this could be said to be otherwise, it is beyond question that it was not in pursuance of any rules, regulations, by-laws, or instructions.

As to the twelfth count, which, among other things, ■claimed that the death was the result of the negligence of a person who had superintendence intrusted to him, while in the exercise of the superintendence, in that the ■engine was left unattended by any one capable of properly controlling it, it is not supported by the evidence. The plaintiff proved by the witness Mylarn, who was intrusted with the care and management of it, that he was there present all the while, and that he was within a feAV feet of the engine when the accident happened; and that there was nothing to show that it was negligence on his part to he a few feet away from the lever. It was proven by him himself that the operation of this engine was not the only duty enjoined upon him; that he was the only one authorized to operate it; and that he was not required to operate it very much while the furnace was in process of construction, and that he was engaged in doing other duties at the very time; and it certainly could not be said to be culpable negligence of his allowing the negroes to go into the doghouse to warm on the occasion, and he certainly had no right to anticipate that they would meddle with the lever in there, or attempt to usurp his authority in his very presence. Certainly.the employer is not called upon to anticipate meddling with instrumentalities, though they be dangerous ones, by grown people and those who know of their dangerous uses and purposes.

As to the allegation of the fifteenth count, that the injury was the result of the act of a person whose name and particular office are unknown and who was entrusted with superintendence while in the exercise of it, in negligently causing plaintiff’s intestate to be carried upon the car when it was highly dangerous to his life, it is not supported by any evidence, but the contrary is affirmatively proven by plaintiff’s own evidence. It appeared from all the evidence (and it must be remembered that all the evidence in this case was that of plaintiff’s own witnesses) that the intestate rode upon the car as a matter of his own choice and convenience. There was no evidence to show or tending to show that he was invited, ordered, or directed so to do. It does not appear that any witness had seen him before the accident. It also affirmatively appeared, without contradiction, that there was a stairway leading up from the ground to the top of the furnace, parallel with the incline tramway, by which the intestate conld have made the trip if he had desired; that it was built for the very purpose of persons ascending and descending; that it was at the time in a perfectly safe condition, unobstructed, and that he chose the route by the car father than the other which was safe and open to him.

As has been said before in reference to the fifth and sixth counts, there is no evidence whatever to support the averments of willfulness or wantonness on the part of the defendant or any of .its agents for whose acts it was responsible.

What has been said above with reference to the first and second counts disposes of the third count, and what we have said with reference to the first count disposes of the fourth count, and what has been said of the other counts when specifically mentioned disposes of all the counts of the complaint.

If the propositions of law are correct, the evidence not only failed to support all the material averments of any one count, but it affirmatively disproves one or more material averments of every count of the cone plaint. This being true, the general affirmative charge should have been given for the defendant as requested, and if there be error in the way or manner in which it was given, or in other instructions to the jury, it of necessity was without injury to the plaintiff.

It is proper for us to say that we have not ignored the fact that, evidence was excluded by the court against the objection of plaintiff, as to which he assigns error, and we have considered the case thus far as if all those rulings had been made in favor of the plaintiff; that is to say, if the evidence had been introduced, which he desired to introduce, but which was not allowed, and if that had been excluded which he 'desired to be excluded, but which was not allowed, the plaintiff would still not have been entitled to recover for the same reason — that is to say, it would not have overcome the difficulties. In fact, the evidence which he sought to introduce in several instances was subsequently allowed; that is to say, that it was dangerous to ride upon the car in the condition and under the circumstances under which plaintiff’s intestate rode.

Injuries to servants from the negligence of fellow ■servants, not within the line or scope of the employment •or within the provisions of the employer’s liability act, do not render the master liable for such act. As was :said by Chief Justice Brickell in the case of Smoot v. M. & M. Ry. Co., 67 Ala. 17, from which we have' already quoted: “The reason for relieving the master from liability for such injuries is founded in the policy of encouraging and compelling servants to exercise diligence .and caution in the discharge of their duties, and which, while protecting him, affords protection also to the master.” It is true that this case was decided before the employer’s liability act, but the rule and proposition are true except as to cases taken without the rule by authority by the provisions of the employer’s liability .act.

. It is true that when the evidence is conflicting the jury should be left to find the facts without interference by the court, and if there is any evidence tending to prove a fact, no matter how slight, the court has no right to take such question from the consideration of the jury. It is the province of the jury and not of the •court to find from the evidence the truth of a disputed fact. It is also well settled that in jury trials it is the ■exclusive province of the court to determine all questions of law arising in the case, and it is likewise the exclusive province of the jury to. determine the facts under proper instructions from the court. The line between the duties of the court and those of the jury should he observed. It is of the greatest importance to the administration of justice that each should be made responsible for its appropriate department, for in this way only can errors of law be traced to their proper source.—State v. Smith, 6 R. I. 34.

Under our system of laws and the practice prevailing in our court for nearly 100 years, the power is vested in the court to determine whether the evidence offered tends to support the allegations of the party. The right should be cautiously exercised, but in some cases it is the duty of the court to direct a verdict when thereunto-requested in writing, and a failure so to do will be error, for it is not only the right, but the duty, of the court. When the plaintiff has introduced his evidence, and it does not tend to prove the plaintiff’s cause of action, the court may refuse to hear evidence offered by the defendant, and, if properly requested, direct the jury to find against the plaintiff, but it is only in the abseuce of all evidence against the defendant that the court should direct a verdict in his favor. And it is always error and not within the discretion of the court to leave a question to the jury in respect of which there is no evidence. If there is none to support the theory of fact assumed, the court should not let the case go to the jury; likewise, when the facts in the case are undisputed and the evidence, with all the inferences which the jury can rightfully draw from it, does not as a matter of law have any tendency to establish the proposition which is essential to the maintenance of the action, it is the duty of the judge, if properly requested, to instruct the jury; but if there be any evidence which tends to establish the plaintiff’s cause, it is error for the court to withdraw the case from the jury or to direct a verdict; because it is not for the court to judge of the sufficiency of the evidence. Bnt the affirmative charge should not be given when the evidence is conflicting as to any material question necessary for the verdict, or when the evidence is circumstantial, or when a material fact rests wholly in inference; but it may be given, and should on request be given, whenever the court would sustain a demurrer to the evidence interposed by the party requesting the instruction.—Smoot v. M. & M. Ry. Co., 67 Ala. 17; Tabler v. Sheffield Co., 87 Ala. 309, 6 South. 196.

Applying these propositions of law above stated to the evidence in this case, a verdict should not have been allowed against the defendant, for the reason that there was an entire failure of proof as to each count of the complaint. Some of the material averments in each count of the complaint were expressly disproved by the evidence of the plaintiff. There was no conflict as to any material fact which was necessary to the defense; there could be no reversible error because there could be no injury done the plaintiff by the direction of a verdict for the defendant.

The case is affirmed.

Affirmed.

Simpson, Anderson, and Evans, JJ., concur. McClellan and Sayre, JJ., dissent; the former being of the opinion that the court erred in giving the general affirmative charge.