Decatur Car Wheel & Manufacturing Co. v. Mehaffey
128 Ala. 242
Ala.
1900
Check Treatment
DOWDELL, J.

Thе plaintiff sues as administratrix to recover damages for an injury to her intestate resulting in his death caused by the alleged negligence of ¡the defendant’s superintendent, one Stevens. The complaint contained some twenty or more counts. All of these counts but two, the second and the fourth, have been eliminated by the ladings of the court below. Demurrers to the second and fourth counts were •overruled by the court, and on these two counts a trial was had, resulting in a verdict -and judgment for the plaintiff, and from this- judgment the present appeal is prosecuted.

The injury complained of was received by plaintiff’s intestate while in the employment of the defendant and in the discharge of his duties under said employment. The negligence which is alleged to have caused the injury consisted in the negligent giving of an order by the defendant’s superintendent, who was in •charge of the work, at a time and under circumstances known to the said superintendent, that would probably in its execution produce certain results allеged In the complaint. The deceased was -engaged at the time, with other employes -of the defendant, in raising a bar of iron to a hanging -scaffold. The bar of *253iron was § to £ of an inch thick, 4 to 5 inchеs wide,, about 50 feet long, and weighed about 500 pounds. It was being hoisted to a hanging scaff old, which was-12 feet above ‘the ground, by means of a pulley with block and tackle. The pulley rope was wrapрed or tied around the bar about 12 feet from one end, being the end first raised, the other end resting on the ground. There were four or five men -at the pulley rope, for the purpose of pulling on the same to raise the bar, the deceased being "at the time on the scaffold for the purpose of guiding the end of the bar, and to otherwise assist in the hoisting and receiving the same. While so engaged the alleged accident happened which resulted in the death of plaintiff’s intestate.

The second count of the complaint, to which a demurrer was interposed -and by the court overruled, after stating certain conditions in connection with the work being done, which it is alleged Stevens, the -superintendent, knew, avers that Stevens, “knowing that to give slack to the rope to which said bar of iron was -аttached would pro-bahly cause said bar of iron to strike upon or against -said scaffold and to cause the same to swing -or oscillate, negligently ordered the persons in charge of the ‍‌​​​​‌‌‌​​​‌‌​​‌​​​‌‌‌‌​​​​‌‌​​‌​‌​‌​‌​​‌‌​​​‌‌‌‍рulley, bv which said bar of iron was being hoisted, to give slack to the rope to which said bar of iron was -attached, which they -did, and because thereof said bar of i-ron Avas tlxroAvn -or struck against -said scaff-old, causing the same to swing or oscillate, and by reason thereof caused plaintiff’s intestate to fall from off -said scaff-old to the ground, inflicting the injuries aforesaid.” It is not pretended that the giAfing of the order to slack the rope, or its execution, was an act per se negligent, but only became so Avhen -coupled Avith the knowledge on the part of SteA’ens of the existence of certain facts аverred. For aught that appears the order given was-not an unnecessary one in the accomplishment -of the work being done. It. is not aArerred that the reasonable and probable result of the swinging of the scaffold would be to throw the deceased off. A knowledge of the probable striking of the iron against the scaffold and causing the same to swing does not imply a knowledge that the *254reasonable result of the swinging would be to throw ilie deceased from the scaffold, nor will the statement- of the fact that the deceased was thereby thrown from the scaffold supply the omission of an averment in the complaint of a knowledge on the part ■of Stevens that such would be the probable or reasonable result of the giving of said order. It cannot be assumed that because a mаn was on a scaffold in a squatting position that he will fall when the scaffold swings. This count does not show that Stevens knew that the reasonable effect of his order would he to cause injury to Mehaffey, the dеceased, nor does it show that Stevens had any reason to anticipate that the man would fall, even if the scaffold swung, and for this reason we do not think that what is averred constituted negligence. Thе grounds stated in the de;murrer to this count, however, do not go to this extent.

The fourth count after setting forth substantially (the avermentc contained in the second in addition avers that Stevens “well knowing that the slaсkening of said rope would cause-said piece of bar iron to strike or press against said scaffold, and cause it to move or swung and thereby have a tendency to throw plaintiff’s intestate off of said 'scaffold, * * * the said Stevens wrel<l knowing at the time that it was dangerous to the plaintiff’s intestate to cause said rope to he slacked and said iron descend as aforesaid without some other perspn being on the scaffold to assist said intestate in receiving said bar iron.” These averments when coupled -with the others as to Stevens’ knowledge of ‍‌​​​​‌‌‌​​​‌‌​​‌​​​‌‌‌‌​​​​‌‌​​‌​‌​‌​‌​​‌‌​​​‌‌‌‍other facts averred, and also of the fact that there Ava-s at the time no other person on the scaffold to assist in receiving the iron, and with the further averment that the negligent giving of the order and its execution caused the injury, rendered this count unobjectionable to the grounds of demurrer stated.

During the progress of the trial, the court permitted the plaintiff against the objection of the) defendant to introduce evidence of tеsts made by certain witnesses upon the scaffold iwo years after the alleged accident, *255for the purpose of showing to whait extent the scaffold. could he made to swing or oscillate. Thе evidence shows that the scaffold, at the time of such tests, had been removed from where it was at the time of Mehaffey’s fall, and had been put away for future use; that it was not in the same condition as it Avas at.the time of the accident; that there were no braces upon it, Avhereas there Avere braces at the time of the accident to keep it steady. Not being 'substantially in the same condition that it was Avken the accident happened twO years previously, we think this evidence was clearly irrelevant and should not have been admitted. If was calculated to prejudice the minds оf the jury by holding out the suggestion that the scaffold was easily made to swing. As was said by this court in Clay’s Case, 108 Ala. 234: “The only effect of such evidence was to confuse and mislead the jury’s mind from the real issues of the case. From the very fact that the court let iit in against the objection of the defendant, it was calculated to impress them that it was a dangerous fact against the company.”

Opinion evidence, or evidenсe of experts, as ‍‌​​​​‌‌‌​​​‌‌​​‌​​​‌‌‌‌​​​​‌‌​​‌​‌​‌​‌​​‌‌​​​‌‌‌‍to matters within common knowledge, is inadmissible. — Ala. Min. R. R. Co. v. Jones, 114 Ala. 519. The structure and condition of the scaffold, the dimensions and weight of the iron, and the manner of its handling, being known, the natural effect of the, iron’s striking against the scaffold was a matter within common knowledge, and the jury was as competent to form an opinion as a witness; and Ave think the court in this respect erred in permitting the witness to give his opinion agаinst the objection of the defendant.

In the case of the Western R’y of Alabama v. Mutch, Admr., 97 Ala. 196, it was said by this court, quoting from the Am. & Eng. Ency. Law, Vol. 16. p. 436: “To constitute actionable negligence, there must be not only causal connection between the negligence complained of and the injury suffered, but the connection must be by natural and unbroken sequence — AAdthout intervening efficient causes — so that but for the negligence of the defendant the injury would not have occurred; it must not only he .a cause, but it must be the proxi *256mate; that is, the direсt and immediate efficient cause of the injury.” That portion of the oral charge of the court, in the following language: “If it (the defendant) was guilty of negligence with regard to him in the doing of the ‍‌​​​​‌‌‌​​​‌‌​​‌​​​‌‌‌‌​​​​‌‌​​‌​‌​‌​‌​​‌‌​​​‌‌‌‍work, in and 'about the doing of the work he was employed to do, then it is liable for the damages resulting from the negligence if he was himself without fault,” does not correctly state the law as laid down in the case of Railroad Co. v. Mutch, supra; and standing alone, unexplained, would be error, but when taken in connection with other portions of the oral charge, which instructed the jury to the effect that if there existed other efficient cause оr causes intervening between the alleged negligence and the injury that the plaintiff could not then recover, the portion excepted to as above set out was relieved of reversiblе error.

The measure of damages in a case like the present was correctly laid down in the case of L. & N. R. R. Co. v. Trammell, 93 Ala. 350, but in the estimation of damages the question of life expectancy is one of the facts to be left to the jury to be determined by them under all the facts and circumstances relating thereto. Ala. Min. R. R. Co. v. Jones, Admtx., 114 Ala. 533. We do not think, however, that the portion of the oral charge excepted to, is open to the objection urged by the ‍‌​​​​‌‌‌​​​‌‌​​‌​​​‌‌‌‌​​​​‌‌​​‌​‌​‌​‌​​‌‌​​​‌‌‌‍appellant. The court did not undertake -by this charge to state to the jury what the duration was, as in the case of Jones, supra, and if the charge had any misleading tendency, it was the duty of appellant to have met the same by asking for an explanatory charge.

The measure of proof in all civil actions is to reasonably -satisfy the jury. Charges which require satisfaсtion beyond reasonable doubt exact too high a degree of proof, and should never be given. Charges likewise instructing the jury that if they are in doubt as to which one of two or more causes prоduced the injury complained of, that they should find for the defendant, are properly refused. Charges which single. out particular parts of the evidence, thereby giving undue prominence to such evidеnce, have been often condemned by this court, and are properly refused.

*257We have not considered the charges seriatim, but as the case must be reversed for the errors pointed out we think what we have said will sufficiently answer for the purposes of 'another trial.

Be versed and remanded.