118 So. 276 | Ala. | 1928
The assignments of error are properly grouped and argued, Polytinsky v. Johnston,
The trial was had on counts 1 and 2; the wanton count was withdrawn. The negligent failure averred in the respective counts was as to a reasonably safe place to work and a reasonably safe machine for those who were required or invited to be upon or about it in the discharge of the duties of his employment or the purview of the express or implied invitation.
Plaintiff, an inspector, engaged in construction work on a street in Birmingham, *263 was injured, and sued. He was engaged in the performance of his duty as paving inspector for the city, and being required to know the contents of the mixture that was being applied to said street, inspected the same and found it not of a proper mixture. To investigate the cause and remedy that defect, the plaintiff went to defendant's concrete mixer to have the man in charge properly regulate the contents as discharged upon the street. When plaintiff leaned over to look into the drum of said mixer, his clothing was caught by the lugs on the revolving shaft's end, causing the serious injuries of which complaint is made.
It cannot be successfully maintained that plaintiff was a bare licensee (A. G. S. R. Co. v. Cummings,
The evidence is without conflict that the paving inspector, when injured, was in the discharge of his duty as an invitee, and as to him the contractor must have exercised and employed the reasonable care, skill, and means of an ordinarily prudent person so engaged — for the contemplated use and purpose of the express or implied invitation — as to avoid personal injury to such invitee. Alabama By-Products Corp. v. Crosby, supra; Doullut Williams v. Hoffman,
Counts 1 and 2, as last amended, contained, respectively, the averments of fact showing, among others, the relation of the party and the duty in the premises, as follows:
" 'And plaintiff avers that it was the duty of the defendant at said time and place to exercise reasonable care and skill in providing plaintiff a reasonably safe place to do his said work.' "
" 'And plaintiff avers that it was the duty of the defendant at said time and place to exercise reasonable care and skill in providing that said machine was reasonably safe for persons whose business or work required them to be at and about said machine, and plaintiff avers that defendant negligently failed to perform the said duty, and as a proximate consequence thereof plaintiff received his said injuries and damage.' "
Negligence may be charged in general terms if the facts averred show the duty owed by defendant to do or not to do the thing complained of as the proximate cause. Cook v. Sheffield Co.,
We are now brought to defendant's special plea of contributory negligence. In contributory negligence, the essentials are that the party, against whom the plea is interposed, not only (1) had knowledge of the condition or failure, yet (2) appreciated the danger under the surrounding conditions and circumstances and did not (3) exercise reasonable care in the premises, but with such knowledge and appreciation put himself into the way of danger. Morgan v. M. O. R. Co.,
"The phrase 'assumption of risk' is, however, sometimes loosely applied to cases where there was no contractual relation between the plaintiff and the defendant, but that use of the phrase 'must be confined to cases where the plaintiff knew and appreciated the danger and voluntarily put himself in the way of it.' Warren v. Boston, etc., R. Co.,
"Practically there can be no serious objection to these uses of the phrase, and 'it is often a question of little importance whether a given plea be called one of assumption of risk or a plea of contributory negligence. The more important inquiry is: Are the facts stated in the plea a defense to the cause or causes of action stated in the complaint or declaration?' King v. Woodward Iron Co.,
The instant plea was that of contributory negligence, and the mere knowledge of the offending instrumentality or condition does not constitute contributory negligence; there must have been an appreciation or consciousness of the danger that may result from the act or the failure thereof causing and resulting in the injury. Dobbins v. W. U. Tel. Co.,
The several postulates on which was rested the fact of contributory negligence in the case of Sloss-Sheffield S. I. Co. v. Reid,
The mixer had theretofore been operated with a shield, and the plaintiff had been to and about the machine in its condition and operation as that causing his injury. Defendant's cross-examination of plaintiff elicited the statement of fact that he did not consider at all with reference to its danger as located and operated. The several photographs of the machine were in evidence; its location on the street and with reference to the ditch or place to be filled were before the jury. The burden of the special plea was upon defendant. The question is one of law for the court only when the facts are such that all reasonable men must draw the same conclusion therefrom, and for the jury when, under the facts and circumstances, reasonable minds may fairly differ upon the question of negligence vel non. Ruffin C. T. Co. v. Rich,
The physical injuries of plaintiff were grievous and extended to a loss or injury of the several members of his body, specifically described in the complaint, and for which permanent injury damages were claimed. The question of nominal damages for permanent injuries and decreased earning capacity, under the required pleading and evidence, was given extended consideration in B. E. Co. v. Cleveland,
"Plaintiff's right hand was cut off, his left hand hurt, and one finger was cut from his left hand. Plaintiff's legs were seriously and permanently injured, * * * was permanently injured and rendered less able to work and earn money, and was compelled to spend large sums of money for doctors and medical service, hospital bills, and nurses in and about treating his said injuries."
And the allowance of damages for permanent decreased earning capacity as the result of such physical dismemberment and injury without specific evidence of loss or decreased income or salary, before or at the time of the trial, is not a mere speculation. Birmingham Elec. Co. v. Cleveland,
The claim for lost time from work or business must be supported by the evidence and specific data given on which to rest recovery for such element of damage. Gray v. Cooper,
There was no error in the refusal of defendant's charge 6. The effect of the testimony of Dr. Moore, considered as a whole, is that the respective expenditures by plaintiff for physician and hospital charges were reasonable and usual for such services rendered. There was no objection to this shorthand rendition of facts and opinion evidence rested thereupon, that the physician stated the scars on plaintiff's forehead would cause or should cause some pain. There was no error in refusing charges C-11, C-13, and C-14.
The overruling of defendant's motion or repleader was without error. There is no field of operation in this case for the rule as to motion for judgment. The issues of law and fact were properly drawn and tried, and due submission of controverted material issues given the jury, and were decided conformable to the pleading. The cases of repleader or non obstante veredicto have no application. Shippey v. Eastwood,
The statement as to a remittitur is contained in Southern Ry. Co. v. Dickson,
Affirmed conditionally.
The majority — SAYRE, SOMERVILLE, GARDNER, BOULDIN, and BROWN, JJ. — concur in that there was no error in refusing affirmative instruction requested, believing the question of contributory negligence was for the jury. ANDERSON, C. J., dissents (on this point), believing affirmative instructions requested by defendant on contributory negligence of plaintiff should have been given.