64 So. 753 | Ala. | 1914
The action is by the personal representative of a servant (J. P. Epsey) against the master (appellee) for negligently causing intestate’s death, while intestate was engaged in the service of the master. The cause of action was undertaken to be stated in a. number of counts. Some were drawn under the first subdivision of the Liability Act (Code, § 3910), and others were intended to declare upon the breach of the common-law duty to exercise reasonable care to afford the servant reasonably safe appliances with which to do his work. The trial court, at defendant’s request, gave the general affirmative charge, on the whole case, for-the defendant; and so, on the theory that there was no count in the complaint that did not contain material averments to sustain which there was an entire failure-of proof.
Under the doctrine declared in Tutwiler C. C. & I. Co. v. Farrington, 144 Ala. 157, 167, 39 South. 898, treating-the sixth count, it must be ruled that the evidence here failed to sustain the counts rested on the common-law
The conclusions of fact we will state, drawn from the whole evidence, may have been attained by the jury if the charge of the court had not forbidden the exercise of that function by the jury. The condition of the engine (stationary) was defective in respect of the throttle valve which, when in perfect condition, would prevent, absolutely, the passage of steam from the boiler to the place whereat its pressure would put the engine in motion. Hence the propriety of the affirmative charge could not be predicated of the failure of proof in respect of defect in the condition of the machinery. If a defect in the condition, counted on in the complaint, is found to have existed and to have caused the injury suffered by the servant, still the master cannot he held liable “unless the defect therein * * * arose from, or had not been discovered or .remedied owing to the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition.” It is, as has been often ruled here, essential to a
The Liability Act, in the particular that it predicates negligence of the failure of the master to discover defects in the condition of the ways, etc., contemplates inspection to the end indicated. The duty to inspect exists, just as the duty to remedy defects in conditions exists. The Liability Act has not, in this particular, extinguished the duty of inspection. With us the duty of inspection, in a case of the kind in hand, may be delegated to a- competent servant in whose selection the master has employed the requisite care. The measure of care and diligence for the proper performance of the duty of inspection for defects in condition, etc., is the exercise and employment of the care, prudence, and dil
The evidence in this record tends to show, at least, that a throttle valve, when new, may be perfect in its adjustment, thereby entirely preventing, when closed, the passage of steam through or by it; that the effect of steam and hot water upon the metal or the mechanism of such a valve, “its seat,” will gradually cause it to leak; that the throttle valve in question did leak, and was leaking some hours before the intestate’s injury, thereby permitting steam to pass to the point in the
We have ruled that “wear” of a part of an instrumentality is some evidence of the existence of a defect in condition of such long standing as to support a finding of such want of due care and diligence, either in discovering the defect in condition or in remedying it, as amounts to negligence.-—A. G. S. R. R. Co. v. Yount, 165 Ala. 537, 543, 51 South. 737; B. R. M. Co. v. Rockhold, 143 Ala. 115, 126, 42 South. 96. On the evidence before us it cannot be affirmed, as a matter of law, that proper inspection of this engine would not have disclosed its defective condition in respect of the throttle valve — a defect which the evidence tends, at least, to show was probably the result of long and gradual impairment by steam and hot water of the valve seat. And it cannot be affirmed, as a matter of law, that there was no evidence inviting a finding that time and opportunity were not afforded defendant to discover, by proper inspection, this defect in condition and to have remedied it.
The affirmation by Dunaway that the engine was in “reasonably good condition” appears to have been explained by him on the redirect examination. His utterance, in that phrase, seems to have reference, according to the later statement by him, to the condition with reference to when a sufficient accumulation of steam and hot water, through the leaking valve, in the cylinder Avould be sufficient to impart motion to the engine. He seems to have someAvhat confused terms descriptive of condition in which the machinery was in respect of the valve in question. At any rate, his testimony Avas
The issues were for the jury on both the complaint and the pleas, the substance of which the reporter will summarily state. The evidence is silent as to Epsey’s knowledge of the fact that, by accumulated steam through the leaking valve, the engine would involuntarily start or continue to move. The evidence does not make a case under the doctrine of A. & B. A. R. R. Co. v. Alexander, 161 Ala. 382, 49 South. 792.
For the error in giving the affirmative charge for defendant, the judgment is reversed, and the cause is remanded.
Reversed and remanded.