Houston Biscuit Co. v. Dial, 135 Ala. 168

135 Ala. 168 | Ala. | 1902

SHARPE, J.

In the trial court all counts of this complaint except the seventh and eighth were disposed of on demurrer. The overruling’ of demurrers to the last named counts is among other matters here assigned as error. In each of those counts a cause of action is sought to be predicated upon a violation of duty owed by defendant to plaintiff as its employe in respect, of a condition of machinery used by defendant in its bakery whereby he received an injury for which he sues. Relative to that condition each of those counts avers in substance that the machinery was driven by a steam engine, that the operation of a particular dough mixing machine was controlled by a belt arranged to run interchangeably on two pulleys, one fixed and the other loose, so that when the belt was on the fixed pulley the machinery of the mixer would, be put in motion, and when or the loose pulley that motion would be stopped. In count 8 it is averred that to prevent the shifting of the belt of its ovrn motion or accidentally from one pulley to the other, “provis • ion is made in said machine for attaching thereto an iron bar fitted with a pronged guide, -which said bar slides backwards and forwards in grooves and guides and -which said bar so attached forms part of said machine,” and that at the time of the accident “said bar was not attached to the machine but had been negligently removed therefrom by the defendant.” Other 'averments in that count are to effect that plaintiff was in the employ of defendant, and in the discharge of his duties as such employe was oiling the machinery of the mixer while it was still, and that by reason of the absence af the bar before mentioned, the belt slipped from the loose pulley to the fixed pulley, whereupon the machinery on' which he was working suddenly started and crushed his hand. In count 7 also the absence of a sliding bar is averred apparently to show a defect in the machinery, though no particular relation between the functions of the bar and of the belt are in that count specified. ' It is there averred, however, that the bar was originally attached to and was necessary to the safe operation of the machinery, that it had been removed therefrom and that if it had been in place and properly adjusted, the mixer would not have started suddenly and plaintiff would not have suffered the damage complained of. Neither of tluve counts avers in direct terms that the machinery was defective by reason of the absence of the bar or otherwise, but neither of them has the fault attributed to it by the demurrers, of showing affirmatively that “the defect alleged to have existed in the defendant’s ways or plant is not a defect within the meaning of subdivision one. of the Employer’s Liability Act, section 1749 of the Code. Tin* absence of a device needed to prevent the self-starting of machinery made a condition like that upon which negligence was predicated in Donahue v. Brown, 154 Mass. 21. See also Mooney v. Connecticut, etc. Ib. 407. The seventh count sufficiently imputes notice of that condition to the defendant by averments which, though disconnected, are to effect that the. removal of the. bar was the act of defendant’s president, Jackson, who was intrusted with the superintendence of its entire business management, and that “said defect had been of long standing and was well known to the defendant company by and through its said president.” Since a corporation can act and receive knowledge only through its officers and agents, it is in respect of defects in its machinery, ways, etc., bound by the action of its general superintendent.—Quincy Coal Co. v. Hood, 77 Ill. 68; Patterson v. Pittsburg, etc., R. R. Co., 76 Pa. St. 389; 18 Am. Rep. 412. That it does not aver the name of the person referred to 'as being charged with the duty of seeing that the machinery was in proper condition is not a valid objection to the complaint.—McNamara v. Logan, 100 Ala. 187; Woodward Iron Co. v. Herndon, 114 Ala. 191. While they may not be above criticism these counts are not subject to the objections raised by the demurrers.

The fact that defendant examined Jackson as its witness gave relevancy to Martin’s ^affirmation that Jackson requested him to sign a statement to be prepared by a company that had insured defendant, declaring that the injury came through plaintiff’s own fault. Jackson’s attempt, if made, so to procure the exculpation of defendant, whether for its advantage or for the benefit of the insurance company, was a circumstance evidential of partiality or interest on his part, calculated to bias his testimony. Being relevant for one purpose it is unimportant that this testimony of Martin’s riiav have been introduced for another purpose.—Goldsmith v. Picard, 27 Ala. 142; Cook v. Parham, 24 Ala. 21. The introduction of it in advance of the examination of Jackson, though irregular, involved no reversible error. — 1 Brick. Dig., 809, § 86. To show he had such concern for defendant as might influence his testimony, it was proper to allow the cross-examination of Jackson about his conversation with Martin on the subject of signing a statement of the kind referred to.

If there was any error in allowing Leveritt to testify as to an injury to one Jordan by this machinery, that error was rendered innocuous to defendant by the development of the hearsay character of that testimony and its consequent exclusion.

The defendant having elicited from its witness, Titus, his opinion as to the safety of the machine, it was not improper to allow the witness’ knowledge on that subject to be tested by questions as to whether‘the belt would slip under hynothesized conditions that may have existed even in the absence of evidence that all such conditions existed in fact.

It is axiomatic that like causes under like conditions produce like results; and accordingly evidence that the belt had on previous occasions slipped from the loose to the fixed pulley by the unaided action of the machinery, was relevant as possibly affording an inference that such a transition of the belt was so effected on the occasion in question.—Mooney v. Connecticut, etc. Co., supra. If not discredited, the testimony of Howard affirming that the belt was shifted to the fixed pulley by Conrad would have left no room for such inference; but there was evidence tending to prove Howard was not present and did-not see the belt shifted; consequently it vais open to the jury to reject that part of his testimony and to infer from the evidence of what had previously occurred that the belt slipped of its own motion and started the mixer in consequence of the absence of the sliding bar. The giving of either of charges 1, 2, 8, and 9 would have restricted improperly the effect of inferences which the jury was authorized to draw from the evidence.

The duty which under the statute the defendant owed its employes extended to the use of care in the maintenance of its machinery as well as in providing it originally, but this duty of maintenance is ignored in charges 5 and 10.

Whether the facts predicated in charge 4 were such as constitute contributory negligence was a question for the jury and not for the court to determine. Under the pleading and evidence the question of negligence vel non both on the part of the defendant and of plaintiff were proper for the consideration of the jury.

Reversible error is not found either in the proceedings had on the trial of the main case or of the motion for a new trial.

Affirmed.