Bice v. Steverson

Apr 21, 1921

5 Div. 746.

Versions:88 So. 753

205 Ala. 576

1921 Ala. LEXIS 548

SOMERVILLE, J.

[1] If there was error in sustaining the demurrers to counts 1 and 2 of the complaint, based upon the negligence or the negligent order of defendant’s superintendent Baker, it cannot he held as prejudicial, since plaintiff had the full benefit of the matters therein alleged under counts 5, 6, 7, S, or 9.

[2] Counts 3 and 11 are framed under subdivision 1 of the Employers’ Liability Act (Code, § 3910). If the demurrers to these counts were improperly sustained, the rulings were not prejudicial, for the reason that the evidence could not, in any aspect, have supported the charge of these counts that plaintiff’s injury was the result of “a defect in the ways, works, machinery, or plant connected with or used in the business of the defendant.” The only contention is, as specified in count 11, that there were no sufficient steps or ladder op the side of the car upon which the plaintiff could mount to reach and apply the brake at the front end of the ear, so that it was necessary for him to go around in front of the car and mount upon the step or stirrup at that end.

[3] The car in question was the property of the railroad company, and used for the transportation of freight. It was not a part of the ways, works, machinery, or plant connected with or. used in the business of defendant in any sense comprehended 'by the statute. Defendant had nothing to do with its construction, and was in no way responsible for its condition as to steps or handholds; and the mere fact that the railroad company left the car at a point on its side track for the convenience of defendant in loading his timber upon it for shipment over its line, did not alter his relation to the car, nor render him responsible for its structural inconvenience, if any there were. Manifestly, he was bound to use it in the condition in which he found it. See Seminole Graphite Co. v. Thomas, ante, p. 222, 87 South. 366.

[4] Count 10 does not charge that defendant’s superintendent willfully, wantonly, or intentionally caused plaintiff to be injured, but only that he willfully, wantonly, or intentionally ordered plaintiff to go upon the car and set the brake, knowing that such action would be attended. with great danger, and that plaintiff would probably be injured unless he exercised great care in so doing. It is wholly insufficient as a willful or wanton count. B., R. L. & P. Co. v. Brown, 150 Ala. 327, 43 South. 342. And, as it does not charge negligence, it states no cause of action, and was properly eliminated. C. of G. Ry. Co. v. Freeman, 134 Ala. 354, 32 South. 778; So. Ry. Co. v. Bunt, 131 Ala. 591, 32 South. 507.

The nature and circumstances of plaintiff’s injury conclusively show that the only ground upon which he could have recovered was the superintendent’s alleged negligence in directing him, a 16 year old boy of limited experience, to get on the car while moving and set. the bráke. Whether that order was in fact given, and whether, if, as given, it was under all the circumstances of the case a negligent breach of the superintendent’s duty to plaintiff, was a question of fact for the jury, and the issue was fully and fairly submitted for their determination.

[5] Of the special pleas of contributory negligence to which demurrers were overruled, pleas 12, 13, and 16 sufficiently state the act of negligence relied on as a fact, and not merely as a conclusion, and those pleas were not subject to the grounds of demurrer assigned.

[6, 7] .Plea 6, on the other hand, was clearly subject to the demuiTer on that ground, and the demurrer was erroneously overruled. However, as the other good pleas compre *580 hended all of the acts of contributory negligence which were rélied upon, and which the evidence tended to support, and as the question of such negligence was fully submitted to the jury under the instructions given to them by the trial judge, the error in allowing this plea to go to the jury could not possibly have affected the result prejudicially to plaintiff.

[8] Under the special pleas and the several special replications thereto, the issue of defendant’s liability was a question of fact for the jury.

[9-11] Plaintiff’s knowledge of freight cars and their structure, and his experience in getting on and off of them, was put in issue by the pleadings. It was therefore proper for defendant to inquire of plaintiff, with respect to a former occasion when he was riding on a freight train, as to the kind of train it was, and the part of the train he was on. ' It was proper also to ask the witness Brooks if he had, within a year or two, seen plaintiff get on and off of moving freight trains. So> also, it was competent for plaintiff’s father to testify as to plaintiff’s inexperience, if he knew it as a fact. But it was hardly within the Issue to ask him if plaintiff had had any experience “in operating cars, or setting brakes on cars of that kind”; and his answer that “he hadn’t had any experience, scarcely,” was too clearly the expression of an opinion to be competent. Moreover, on cross-examination by defendant, the witness stated without objection that plaintiff bad had no such experience at all. In any view of the matter, the ruling complained of was not prejudicial error.

[12,13] While it is always proper to show the interest of an adversary witness in the parties or the issues, and that he has been improperly influenced in the giving of his testimony, it was clearly improper to ask one of defendant’s witnesses on cross-examination if one of defendant’s attorneys told him a short while before that “Mr. Stevenson wanted him as a witness.” Conceding the fact, it had no tendency to impeach or discredit the witness, and it was. properly excluded as hearsay.

[14, 15] When the testimony of a witness is materially different from another statement' made by him, be may, of course, be impeached by the introduction in evidence of his former contradictory statement. But it was not error for the trial judge to exclude the question to defendant’s witness Niblett, who had been thus impeached: “Then this statement you signed your name to * * * is untrue, is it?” So. Ry. Co. v. Cochran, 149 Ala. 673, 42 South. 100. 1 The allowance of .such questions is in the sound discretion of the judge, and will not he reviewed. The contradiction was here sufficiently apparent, and both statements could not have been true, as the jury could readily see.

Special charges 15 and 16, given to the jury at the instance of defendant, are erroneous statements of the law applicable to this case, and their giving must he held as prejudicial error.

[16] Where a superintendent duly empowered gives an order to an employs to do a thing which, though dangerous, need not necessarily, nor even probably, result in injury to him, the mere fact that he appreciates the danger in doing the thing commanded will not, as a matter of law, render his obedience an act of contributory negligence. In such eases the master and servant do not stand on an equal footing. The duty of obedience and tbe right to rely within reasonable limits upon the skill and judgment of the master or his superintendent, presumptively superior to his own, combine to temper the ordinary promptings of prudence and care, and the servant is not bound at his peril to set his own judgment above that of his superior. Ala. S. & W. Co. v. Tallant, 165 Ala. 521, 532, 51 South. 835, citing 2 Labatt on Master and Servant, 2021.

[17] Tbe question of tbe servant’s negligence in such cases is ordinarily one for the jury, and the test is whether the danger to be encountered was so obvious and so-imminent that a person of reasonable prudence would avoid tbe exposure that must result from obedience. The rule which thus qualifies the ordinary duty of prudence and care in the avoidance of injury by 1 the servant is, of course, peculiarly appropriate when the servant is, as here, a boy of 16, and comparatively inexperienced.

The charges complained of amounted, under the evidence, to an affirmative instruction for defendant. The error in their giving must work a reversal of the judgment.

Reversed and remanded.

ANDERSON, O. J., and McOLELLAN and THOMAS, JJ., concur.

Notes

Reported in full in the Southern Reporter; reported as a memorandum decision without opinion in the Alabama Reports.