62 So. 757 | Ala. | 1913
Lead Opinion
— Defendant (appellant) was engaged in making iron pipe. Plaintiff was its employee. Count 2 averred that plaintiff’s injury was caused by a defect in defendant’s apparatus for hooking up cores. Count 3, which was added during the progress of the trial, averred that the plaintiff’s injury was caused by the negligence of defendant’s superintendent in that he “negligently allowed the pins which held the cores in the shacks to be made weak and brittle.” The fact was
Appellant has argued the proposition that count 2 insufficiently designated and described the part of defendant’s works or plant alleged to be defective, and hence that there was error in overruling its demurrer. But, in the view we have taken of the case, we have not found it necessary to pass upon the question so raised.
In lifting cores from the pit the hoisting apparatus of a crane was attached to the core by means of a clevis, or shack, and a pin which passed through the holes in the clevis and the core. It was plaintiff’s business to adjust these pins when the core was ready to be lifted and then, after the core had been lifted, to detach the lifting apparatus by withdrawing the pin. The clevis and pins would take up some heat from the metal of the pipe, but on ordinary occasions, when things were moving normally, the pins did not get so warm but that plaintiff and other employees might safely handle them with leathers which were supplied by defendant and commonly used by employees, but when some hitch occurred in the operation the pins would become so hot that they could not be so handled. Occasionally also-the pins would, when heated to an unusual degree, bend under the strain of lifting the cores from the pit.
Plaintiff sought to show that defendant followed or allowed its employees to follow the bad practice of cooling the pins by dipping them in a barrel of water when they became overheated, thus so impairing their strength and efficiency that under the weight of the cores they would either bend or break, and his evident purpose was to have the jury infer that on the occasion of plaintiff’s
Upon due consideration of all the evidence, we are of opinion that the inference was not warranted. There was nothing offered on plaintiff’s Tart to show that the pin in this case either bent or broke except that the accident happened and had to be accounted for in some way. On the other hand, defendant’s evidence tended strongly to show that the pin neither broke nor bent, but that it fell from its place after the core had been lifted from the pit and while it was being transferred, or being prepared for transfer to a car for removal, and from this it might have been inferred that it fell from its place because it had not been properly inserted. But as we have said it was plaintiff’s business to insert the pin, and of course it was his duty to insert it properly. If his injury resulted from his failure to do so he cannot recover.
Negligence on the part of the master is not to be inferred from the bare fact that an injury happens to his employee. The complaining employee assumes the burden of showing as an affirmative fact that the employer has been guilty of the negligence charged in the complaint. It will not serve his purpose to show that his employer may have been negligent; the evidence must point to the fact that he was. In this connection we quote the apt language of the Supreme Court of the United States in Patton v. Texas Pac. R. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361: “Where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when
Our conclusion is that there was not sufficient evidence to authorize a finding for the plaintiff on the issues proposed to the jury by the pleading. The jury with equal assurance might have found that plaintiff’s unaided negligence was the cause of his injury, or that it was the result of one of those inevitable accidents which may occur in the course of every business without culpable neglect on the part of anybody, and in this state of the case defendant was entitled to the general charge.
Reversed and remanded.
Dissenting Opinion
(dissenting). — The trial court refused the general affirmative charges, requested by the defendant (appellant), as to counts 2 and 3. Under the evidence shown by the bill of exceptions, it is my opinion that the trial court did not err in that action. Accordingly, I cannot concur in the view prevailing with the majority.
The second count attributes the injury to a defective apparatus for hooking up cores. The third count attributes the injury to the superintendent (Samples) for that he “negligently allowed pins which held the
I have carefully read the bill of exceptions; and it is clear to me that there is evidence tending to support the counts in the respects the contrary is ruled here.
In view of the retrial likely to occur, it is not necessary or desirable that a discussion of the evidence be now undertaken by me.
In my opinion Patton v. T. & P. R. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361, is without any application to this case. The doctrine of that case was announced and applied in Tinney v. C. of Ga. Ry. Co., 129 Ala. 523, 30 South. 623; and Miller-Brent Co. v. Douglas, 167 Ala. 289, 52 South. 414, among others. There being evidence, and reasonable inference therefrom, supporting the material averments of the counts, there could be no uncertainty within the doctrine of the Patton, Tinney or Douglas Gases. If, as the majority hold, there was no evidence Avhatever to support material averments of the counts, then the plaintiff was due to fail for want of evidence to carry the burden assumed by Mm.
