69 So. 960 | Ala. | 1915
Appellee sued appellant to recover damages for personal injuries to plaintiff’s minor son. The gravamen of the cause of action was that defend
The allegation in the other counts on which the trial was had was practically and in effect the same as that of the first. In the second count, the allegation was more specific, but it was voluntarily stricken from the complaint by the plaintiff. This allegation was that: “Plaintiff’s- son, of the age of about 15 years, was working in the employment of said defendant in and about the operation of its mill. That the said Mason Butner was engaged by the defendant, its operatives, servants, agents, or employees, to turn ribs, to Avash them and carry them to the dryroom; that these Avere the duties which the said Mason Butner was engaged to perform by the said 'defendant, its servants, agents, or employees by and with the consent of the plaintiff, his father, but that, on or about said June 16, 1914, the said Mason Butner Avas induced by the defendant, its agents, servants, or employees to leave off said work and to commence and carry on the operation of the wringer, which is a machine operated by the defendant into which wet
The undisputed facts, as disclosed by the evidence, were that the plaintiff’s son was employed in the defendant’s business — the cotton or knitting mill business —and was so employed with the knowledge and consent of the father. The evidence is without dispute that the son was so employed to work in defendant’s mill.
The real, the prime contention in the lower court— and it is here renewed — was whether or not the employment authorized the defendant to put the boy at the work of operating a certain machine known as a wringer. The contention of the plaintiff, so far as the evidence shows, is that the employment did not authorize the defendant to put the boy to work at the wringer, while that of the defendant is that it so authorized the defendant. The plaintiff himself testified on this subject as follows: “I remember the occasion of his going to work there. I was employed by the Huntsville Knitting Company myself, and Mr. Estes, the dyeroom boss, asked me if I could get him a hand, a boy to turn ribs. He said he needed some one to turn ribs very bad; they were getting behind. So my son and I came to the mill the next morning, and my son went ahead of me and saw Mr. Estes. I was standing talking to the boys in front of the door where they turn ribs when Mr. Estes
B. M. Estes, defendant’s foreman, who employed the boy, testified on the subject in part as follows: “Tbe way that I happened to employ Mason Butner was. that Mr. Newt. Butner, bis father, came down to tbe mill and brought tbe boy. Before this I told bim I needed somebody on tbe rib job. After a few days be brought tbe boy down there and said, ‘Here is a boy to turn ribs for you.’ I said, ‘All right,’ and carried bim up and put bim on tbe rib job. I showed bim bow to turn ribs. That was all there was to it. I did not agree to pay tbe boy any definite sum of money — only what tbe job pays. Nothing was said about what I was to pay bim. Nothing was said about putting tbe boy on tbe wringer. He never told me then nor at any other time. The job of turning ribs means that you have to turn ribs, take them to be washed and while down there in tbe washroom you have to help wring them.”
“I mean to tell the jury that no request or statement was made by Mr. Butner that Mason should not work on the wringer. All the help I employed, as foreman of the dye department, to turn ribs also carried the
The particulars of a former difficulty are prima facie not admissible, but where one party .has brought out a part of the particulars, the other in rebuttals may bring out all of such particulars. — Longmire v. State, 130 Ala. 66, 30 South. 413; 5 Mayf. Dig. 421.
Illegal evidence is admissible to rebut illegal evidence introduced by the opposing party. — Longmire v. State, supra; Gordon v. State, 129 Ala. 113, 30 South. 30; Morgan v. State, 88 Ala. 224, 6 South. 761; 5 Mayf. Dig. 421
Except in matters of science and skill, and some other special cases resting upon peculiar circumstances, the understanding and opinion of a witness is not to be received as evidence. In cases not falling within the exceptions, he cannot be allowed to testify to the import of a word used in a contract. If he could, a party might be rendered accountable for the misunderstanding of the witness, contrary to the legal obligation of the contract; and the right to construe the words of the contract would be taken away from the court and the jury, and conferred upon he witness, — Gibson v. Williams, 4 Wend. (N. Y.) 320; Robinson v. Drummond, 24 Ala. 174; Whetstone v. Bank, 9 Ala. 875; 7 Mayf. Dig. 321.
It is further settled that on appeal, when error is predicated upon an exception to the action of the trial court in sustaining an objection by the other party to questions propounded to a witness, the trial court will not be put in error, unless it appears that it was made known to the court what testimony it was expected to elicit by the question, and unless it further appears that it was material to the issues in the case. — Harris v. Badsden, 162 Ala. 369, 50 South. 321; Snodgrass v. Caldwell, 90 Ala. 319, 7 South. 834; 7 Mayf. Dig. 348. The rule is different, however, if the question is sufficiently definite to show that the answer would be prima facie relevant, and it indicates the nature of the answer. It is only when the question is so general that an answer cannot be said to be prima facie admissible that a party is required to inform the court what is proposed to be proven, so that the court may see that the evidence he seeks to elicit is proper. — Birmingham Co. v. Barrett, 179 Ala. 288, 290, 60 South. 263; 7 Mayf. Dig. 347.
As to many of the questions propounded, they were too general, and we are not able to know what evidence was sought to be elicited thereby, nor to say that the answer would have been admissible.
In some respects this case was tried on an incorrect theory, which was that the cause of action was founded upon negligence, and therefore that contributory negligence would be availing as a defense. The action is not founded on negligence, and of course contributory negligence is not availing as a defense.
What was said by this court in Curl’s Case, 153 Ala. 208, 209, 44 South. 975, and the authorities cited, is apt here: “As to the second insistence, said count does not allege any act of negligence, but relies upon the claim that the defendant employed said minor without the consent of the plaintiff. This court has held that one who employs a minor child without the consent of his father, and without such consent places him to work at a dangerous place, or upon a dangerous work, is liable
It is very true that there might be a special plea to an action like the one under consideration, setting up facts to show that the injury complained of was not the proximate result of the wrongful employment of the minor, or placing him to work at a dangerous machine, but was proximately caused by the facts alleged in the plea.
“The court instructs the jury as matter of law that contributory negligence of plaintiff’s son is no defense to this action if the plaintiff did not consent for defendant to employ his son in operating and running a wringer machine.”
These charges stated correct propositions of law, and could have been given without error, but for the fact that issue was joined on pleas 4 and 5, which set up contributory negligence on the part of. the injured boy, and there was evidence tending to prove, the pleas. What was said in Westbrook’s Case, 121 Ala. 184, 25 South. 916, is apt here: “The issue was false and foreign to the case. It would have been appropriate had the employment of the boy been with the consent of the mother. In that case she could only recover for defendant’s negligence, and to a charge of negligence a plea of contributory negligence would have been a defense. But this erroneous ruling was favorable to and made at the instance of the appellant, and hence cannot be reviewed on this appeal. Plaintiff’s remedy against the ruling
As this case must be reversed, we call attention to the fact that it is not certain from the allegations of any of the counts on AAdiich the trial was had, whether it was the employment of the boy by the defendant for any purpose that is denied to have been with the knowledge or consent of the father, or whether it was merely the employment of the boy. at operating the “wringer.” If these counts be construed to deny the knowledge and consent of the father to the employment of the boy by the defendant for any purpose, then of course, the plaintiff failed to make out his case, because the undisputed evidence shows that he did consent to the employment, in that he made the contract himself. The real and only conflict is whether or not the father consented to the boy’s being employed or used to operate the “wringer.”
As the case was evidently tried on false issues, Ave deem it unnecessary to pass upon other questions, which may not arise on another trial.
Reversed and remanded.