Illinois Car & Equipment Co. v. Walch

132 Ala. 490 | Ala. | 1902

McCLELLAN, C. J.

— This is an action by the ad-ministratrix of an employe against the employer for negligence on the part of the defendant, or for which it is responsible, whereby the intestate came to his death. The intestate, Walch, was a member and foreman of a squad of defendant’s employes whose duty in part was to load iron rails upon flat cars in defendant’s yard. They were engaged in so loading such a car when Walch was killed. He and another of the force were on the car receiving rails passed up to them by the others, and placing them on the platform or floor of the car when the platform turned over by the side, clear of the trucks and threw him to the ground or upon the rails lying on the ground by the side of the car, and killed him. The theory of the complaint is that this keeling over and fall of the platform was caused by defects in the condition of the car. It is common knowledge that the platform of such a car extends over and beyond the wheels and considerably beyond its side supports. Of course when sufficient weight is put on the platform outside of its supports on one side to overbalance its weight on the other side of such supports, the result necessarily is to turn it and cause it to fall from the trucks, unless the force of the overbalancing weight is resisted and overcome by fastenings of the platform to the trucks. The 6th count of the complaint, —the trial was had on counts 6, 7 and 8, — alleges that while Walch was on top of the platform of the car loading or assisting in loading rails thereon, “the top or platfprm of said car was by the weight of said rails overturned, and left the remaining portion of the car, turned bottom side up upon the ground, or upon some iron rails there upon the ground beside the railroad track, and plaintiff’s intestate was thrown with such force to tlie ground, or to and upon the iron rails there upon the ground, that he received injuries from which he then and there died,” and it proceeds further to aver that “the said injuries and death of plaintiff’s intestate Patrick Walch, was caused by reason of a defect or defects in said car in this: 1st. The said car was worn and weak, insufficient and dangerous for moving or bearing heavy loads such as iron rails. 2nd. The top' or platform of said car was not bolted or fastened down sufficiently or securely to the other portions of said car. 3rd. Some of the timbers of said car were worn, cracked, partially decayed, or too weak to resist the strain upon them when being loaded. 4th. Some of tbe iron bolts, pins, or fastenings used to hold the top or platform of said car down were old, rusty and weak. 5th. The top or platform of said car had been raised by means of blocks of wood so that it was higher than as ordinarily constructed.” These averments are awkward and somewhat ina.pt to the conclusion in view, but they are, we think, sufficient to show that Watch’s death resulted from the defective and insecure attachment of the platform, to the car through its consequent overturning; and we are of opinion that the demurrer to this count was properly overruled.

The 7th count claims for the negligence of a person intrusted with the superintendence of selecting and placing cars to be loaded by Walch and his crew in selecting and placing this car for use by them in loading the rails when it was in a. defective and dangerous condition for such use, without apprising Walch of its condition. The count is good under subdivision 2 of section 1749 of the Code. The duty of selecting appliances for a certain use involves the duty of selecting appliances reasonably fit for such use; and if a person in the. employment of defendant in the exercise of superintendence in respect of the matter had a defective car supplied to Walch and in using it Walch Avas killed because of its defective condition, the defendant is liable under that clause of the statute.

The 8th count, is framed under clause 3 of section 1749, and is not open to any of the objections taken by the demurrer, mine, of which appear to be insisted upon.

A very material issue on the trial Avas AArhetlier Walch was himself guilty of negligence in the manner of loading and placing the rails on the car in such Avay as to cause1; the platform to keel over and fall bottom up-Avards to the ground; and the evidence shOAved, as, indeed, the result proved, that he began placing the rails on the outer edge of the platform on one, side and so continued until the platform overturned, though warned at the time, of the danger of so doing.. For the manifest purpose of shoAving that he Avas not guilty of contributory negligence, the plaintiff Avas allowed against defendant’s objection to prove that defendant’s superintendent in directing Walch to load the rails told him to get them “loaded as ¡quick as possible.” This Avas error. The fact had no legitimate tendency to prove that Walch exercised due care in the undertaking, nor did it have any bearing by Ava.y of showing that his failure to observe the requisite degree of care Avas the fault of the superintendent rather than his own. assuming that, to be a. material inquiry. As said by counsel : “Because an employe is told to do a thing as quick as possible is no excuse for his being guilty of _contrib-utory negligence whereby he is injured, nor does it afford him a cause of action after he is injured.” The direction AA'as not a part of the res gestae of the main transaction, for that, among other reasons, it throws no light upon that transaction; and its Avhole office and effect in the case Avas to mislead the jury to find that Walch was not .negligent, upon a consideration /wholly inpertinent to- the inquiry. - . . .

However.strong the evidence going to show contributory negligence may have- been, there was yet other evidence from which it was open to the jury to infer, that the car was in a defective condition, that but for its defects the platform would not have overturned and that Walch had a right to assume that the car was in proper condition. On these findings of fact, it was at least a question for the jury whether Walch was negligent in loading the car in the manner the evidence shows it was being loaded: The court could not declare as matter of law. that no: ordinarily prudent .man would have proceeded as he did. It follows that the affirmative charges requested by defendant were properly refused, since there was neither a lack of evidence tending to show causal negligence on the part of the defendant, nor freedom from conflict in the evidence going to the inquiry of contributory negligence vel non.

If Walch was guilty of negligence in the manner of loading the car, it was on the evidence proximately contributory to . his injury. There can be no doubt of the correctness of this proposition. Therefore referring charge 9 to the evidence, as all charges must be referred, it involved no tendency to mislead the jury to find for the defendant on account of negligence which did not proximaftely contribute to the injury. Abstractly considered the charge asserts a, sound proposition of law. It should have been given.

The counts upon which the trial was had were filed as amendments to the original complaint after the lapse of a year from the time of intestate’s injuries and death, but they are merely differing statements of the cause of action presented by the original counts, and in respect of the statute of limitations they related back to the filing of the original complaint.

For the errors pointed out the judgment of the circuit court must be reversed. The cause is remanded.