73 So. 936 | Ala. | 1916
(1) The first count of the complaint was that on which the trial was had. It charged a defect under the first subdivision of section 3910 of the Code of 1907. The defendant pleaded the general issue “and in short .by consent with leave for both parties to offer evidence of any matter which, if properly pleaded, would be a good plea, replication,” etc.
The proximate cause of the injury is sufficiently averred under the numerous adjudications of this court.—Sloss-Sheffield, etc., Co. v. Dobbs, 187 Ala. 452, 65 South. 360; Standard Port. Cem. Co. v. Thompson, 191 Ala. 444, 67 South. 608; Little Cahaba Co. v. Gilbert, 178 Ala. 515, 59 South. 445; Smith v. Watkins, 172 Ala. 502, 55 South. 611; B. T. Co. v. Reville, 136 Ala. 335, 34 South. 981; Wolf v. Smith, 149 Ala. 457, 42 South. 824, 9 L. R. A. (N. S.) 338; Creola Lumber Co. v. Mills, 149 Ala. 474, 42 South. 1019; T. C., I. & R. R. Co. v. Moore, 194 Ala. 134, 69 South. 540; Harbison-Walker Ref. Co. v. Ross, 8 Ala. App. 631, 62 South. 1009. The authorities relied on by appellant are not in conflict with this view.
The case of Huyck v. McNerney, 163 Ala. 244, 50 South. 926, expressly states that the count was not drawn under the Liability Act, but was for a breach of the common-law duty in respect to furnishing instrumentalities employed in the business of the master. The court say of the count: “It is sufficient in its general averments — practically conclusions — of negligence.—
The objection made to the count in Sloss-Sheffield Co. v. Mobley, 139 Ala. 425, 36 South. 181, was that, while it ascribed the intestate’s death to the negligence of an engineer in charge of an engine, it did not aver “that the engine was on a railway.” This fact was essential to a cause of action, under subsection 5 of section 1749 of the Code (1896).
The decision in Louisville & Nashville Railroad Co. v. Stutts, 105 Ala. 368, 17 South. 29, 53 Am. St. Rep. 127, did not turn upon the insufficiency of the count, but upon the fact that the evidence showed that it was not a defective stop block that caused the injury, but rather the weight of the engine and the resistless force with which it was propelled by the engineer. The court said: “The causal connection between the block and the injury was lacking.—Western Railway of Alabama v. Mutch, 97 Ala. 194 [11 South. 894, 21 L. R. A. 316, 36 Am. St. Rep. 179].”
In Wilson v. Louisville & Nashville Railroad Co., 146 Ala. 285, 40 South. 941, 8 L. R. A. (N. S.) 987, the count undertook to aver the quo modo, and the court said:
“The count as to this causal connection goes no further than to aver in a very general way * * * that plaintiff suffered said injuries and damage by reason and as a proximate consequence of the violation of said ordinance by the servant or agent of defendant, acting in the scope of his authority. Proceeding, the count sets out the mode or manner of his violation. * * * There must have been something done by defendant’s servant, to cause the plaintiff’s team to run away, and what this act was, as an efficient cause for plaintiff’s injuries, and it ought to have been averred. If the count had alleged that, in consequence of the unnecessary ‘blowing off of steam’ and ‘unusual noise’ of the engine, the team was frightened and made to run away, inflicting the injuries complained of, a different case would have been presented.”
So the case of Louisville & Nashville Railroad Co. v. Williams, 113 Ala. 402, 21 South. 938, but pointed out the insufficiency of
(2) The second, third, and fourth assignments challenge the action of the trial court in qualifying the jury. The bill of exceptions recites:
“After the court had qualified the jury as to the parties and their attorneys, the plaintiff moved that the court qualify the jury as to the Employers’ Liability Assurance Corporation, Limited, on the ground that said Assurance Corporation was a liability insurance company, and the defendant carried a policy with said company by the terms of which said insurance company was obligated to pay any judgment found against the defendant in this suit. The defendant objected to so qualifying the jury on the ground that it was singling out a particular corporation, and because it was just a way of informing the jury that an insurance company was defending the suit, or was carrying the risk for the pipe company, and because it would tend to prejudice the jury against the defendant. The defendant thereupon, and before the court ruled on the above question, suggested in his argument thereon to the court, and insisted, that if the court grant the motion, after overruling the objection, the court qualify the jury by asking them whether or not any of them owned any interest in or worked for any corporation other than the defendant company, and, if so, give the name of the corporation. * * * Thereupon the court qualified the jury as to said insurance company, Employers’ Liability Assurance Corporation, Limited, and to this action of the court the defendant then and there duly reserved an exception. * * * The defendant agreed to and did waive proof of said motion and of the fact that the said Employers’ Liability Assurance Corporation, Limited, carried liability policy indemnifying defendant against loss in this suit.”
No error was thus committed by the trial court. Mr. Justice Mayfield has clearly pointed out the duty of the court and of counsel in the qualification of jurors, and in motions thereof, in Citizens, L., H. & P. Co. v. Lee, 182 Ala. 561, 62 South. 199; Beatty v. Palmer, 196 Ala. 67, 71 South. 422. See, also, Sovereign
(3-5) Refused charges 3, 4, and 5 were properly refused as confusing, and not correctly setting up the doctrine of “Volenti non fit injuria”—Burnwell Coal Co. v. Setzer, 191 Ala. 398, 405, 67 South. 604; Standard Port. Cement Co. v. Thompson, 191 Ala. 444, 67 South. 576, 69 South. 4; Sloss-Sheffield Co. v. Stapp, 195 Ala. 340, 70 South. 267; Wilson v. Gulf States Co., 194 Ala. 311, 69 South. 921; U. S. C. I. P. Co. v. McCoy, 196 Ala. 45, 71 South. 406; Reynolds v. Woodward I. Co., 199 Ala., 74 South. 360, as applied to the evidence in this case.
(6) The condition of the nut on the crosshead at the time of the injury was relevant. This evidence tended to explain plaintiff’s presence on that part of the crane, and his act of driving up the same, as he was attempting to do when he sustained his injury. Charge 6 was properly refused.
(7) The plaintiff’s testimony was to the effect that the steam valve on the engine was defective, and that he informed the superintendent of that fact two or three days before his injury. While the master mechanic, as a witness for defendant, did not testify that the valve was not defective, yet other of defendant’s witnesses did so testify. But the jury saw and heard the witnesses, and they returned a verdict for the plaintiff; and the trial judge refused the motion for a new trial. The conflicting tendencies of the evidence made it a jury question.—Amerson v. Corona Coal & Iron Co., 194 Ala. 175, 69 South. 601; Tobler v. Pioneer Mining & Mfg. Co., 166 Ala. 517, 52 South. 86.
Under the rule long prevailing in this state (Cobb v. Malone, 92 Ala. 630, 9 South. 738; N. C. & St. L. Ry. Co. v. Crosby, 194 Ala. 338, 70 South. 7), the trial court committed no error in refusing the motion for a new trial.
The judgment of the circuit court is affirmed.
Affirmed.