Virginia Bridge & Iron Co. v. Jordan

143 Ala. 603 | Ala. | 1904

TYSON, J.

The complaint contained four counts. The first and third were eliminated by the giving of the affirmative charge as to each of them for defendant. This leaves for our consideration the second and fourth as amended, to which a demurrer was interposed and overruled.

The second count is based on the second section of the Employer’s Liability Act (§ 1748 of the Code) and the fourth on a common law liability. In the second count it is alleged that defendant was engaged in the construction of a bridge across the Cahaba river and that plaintiff was in its employment as a bridge laborer; that it was necessary for plaintiff, in doing his work for defendant, to get upon a trestle and to pass over the same and that there was a plank or timber which connected the two parts of the trestle where plaintiff was working; that the said plank or timber was placed loosely upon said trestle and that plaintiff was passing over or along said plank or timber and that said plank toppled over, causing the plaintiff to be thrown to the ground, etc., etc. That his said injuries were caused by reason of the negligence of one Robertson, who had superintendence intrusted to him and, while in the exercise of such superintendence, he knew or by the exercise of reasonable care would have known that said plank, or timber was not securely fastened, or was not long enough to reach from one part of the trestle to the other, and it was necessary for plaintiff to pass over said trestle and that plaintiff was liable to step on said plank in. the prosecution of his work, or in going to the place where he was to work, yet the said superintendent negligently failed to have said timber properly fastened, etc., etc.

The fourth count is to the same effect as to plaintiff’s being in the employment of defendant, and as to the manner in which he received his injuries, and differs only from the second count in the allegation of negligence. The negligence charged in the count is in this language: “And plaintiff avers that it was the duty of defendant to provide' a reasonably safe place for plaintiff to work upon said trestle and a reasonably safe way for plaintiff to pass and repass in going to and from his work, but plaintiff avers that defendant negligently permitted a plank or timber connecting two parts of a trestle where plaintiff was working to be loose and unstable and plaintiff fell and sustained his injuries by reason of said plank not being securely fastened,” etc.

The demurrer contains a number of grounds, but the only ones insisted on are those raising the question,- that it does not appear from the averments of the counts that at the time plaintiff received the injuries complained of he was doing any work for, or was in the employ of defendant, or in the prosecution of, or in the performance of any service for defendant. Obviously these objections are aimed at those averments of the counts which show that plaintiff was injured, while passing over or along the trestle in going to the place where he had been assigned to work upon it by defendant. It appears from the averments that the trestle was a part of the premises of defendant'and that plaintiff’s employment required him to serve the defendant on these premises, and that in going to his place of work it was necessary to traverse this trestle. “If, in going to and from his work, the servant has to pass over premises which are owned and controlled by the master, he continues in the employment during that time.” — Dresser’s Employer’s Liability, § 13 p. 76.

The principle was recognized by this Court in Whatley v. Zenida Coal Co. (122 Ala. 129), the action being by an administrator of an employe of defendant, where it was said: “He (the intestate) had to go to and from his work along the slope and defendant owed him immunity from hurt through such negligence as is counted on while seeking ingress and egress from his work in its mine.” See also Olsen v. Andrews, 168 Mass. 261; Ewald v. Chicago & N. Ry. Co., 70 Wis. 420. On the averments, after plaintiff arrived upon tlie premises of defendant, lie was subject to tbe orders and control of its superintendent having charge of the construction of the bridge and the employes engaged in work on it. He was, it is alleged, serving defendant as a bridge laborer — not in a special service.' As a laborer he could have been ordered to do any and all work in and about the construction of the bridge that his superior had seen proper to have him do. When this is the case the relation of master and servant exists. — 2 Bailey’s Master & Servant, § 3139; Dresser’s Employer’s Liability, § 13 p. 75.

The case of Ga. Pac. R. R. Co. v. Propst, 85 Ala. 205, relied upon by appellant, clearly has no application here, as will be readily seen from a statement of the facts. In that case the plaintiff was employed by defendant as a night watchman at one of its stations called Patton Mines; that, by permission of defendant’s superintendent, he was in the habit of going to Millport, where his father resided, about fifty miles distant to get his meals. That he voluntarily boarded the freight train at Patton Mines to go to Millport; when the train reached Berry Station, which is about ten miles from Patton Mines, the brakeman being sick, at the request of the conductor he undertook to couple some cars for the brakeman and was injured. This Court held that on these facts he was not in the employment of defendant as a brakeman, but was a mere volunteer and could not recover under the Employer’s Liability Act.

The defendant, it appears by the record, filed a number of special pleas, setting up, according to its contention, the defense of contributory negligence on the part of plaintiff. A recital in the judgment entry shows that they were overruled by the court. If this ruling of the court had the effect of eliminating those pleas as a defense to the action, whether they were good or bad if tested by a demurrer, it was error for which the judgment must be reversed, unless defendant could have had the benefit of them under its plea of the general issue or actually had the benefit of them on the trial. If the record affirmatively shows that it had the benefit of them, then the ruling, while erroneous, was innocuous. That it did have, clearly appears from the evidence and written charges given at its request.

The insistence that the affirmative charge and charges numbered 5 and 6 requested by defendant should have been given proceeds entirely upon the theory that plaintiff was not in the service of defendant at the time of his injury and, therefore, it owed him no duty to provide a safe passage across the bridge or trestle. This contention has been disposed of in what we said in treating of the demurrer to the complaint.

At request of plaintiff the court gave this charge, which was in writing ¡“While the injury alone is not sufficient to authorize a verdict for the plaintiff, yet, I charge you, gentlemen of the jury, that if you believe from the evidence that plaintiff was injured and that the negligence of the defendant as charged in the second or fourth count of the complaint was the proximate cause of the plaintiff’s injuries then you must find a verdict in favor of the plaintiff.” The criticism of this charge by appellant’s counsel is that it ignored its defense of contributory negligence, which the testimony tended in some degree to establish. The charge submitted the question to the jury whether or not defendant’s negligence was the proximate cause of plaintiff’s injuries, and in order for the jury to find that it was, they must necessarily find that plaintiff was not guilty of contributory negligence, which proxy mately contributed to his injury. For the defendant’s negligence was not the proximate cause, if the negligence of plaintiff intervened so as to break the causal connection between defendant’s negligence and the injury; nor if plaintiff’s negligence concurrently and in combination with the negligence of defendant, in natural and continuous sequence, was the cause of the injury. The charge was technically accurate. If defendant apprehended that the jury might overlook its defense of contributory negligence, it should have asked a charge calling their attention to it.

On cross-examination of Ward, a witness for plaintiff, defendant propounded this question, “Arthur Jordan (plaintiff) could have crossed on the same place you crossed on, couldn’t lie?”, to which an objection was sustained. If tbe purpose of tbe question was to elicit the fact that there was a way, other than tbe one that plaintiff took, then tbe ruling was without prejudice to defendant, since this was made obvious by tbe fact that tbe plaintiff was on one stringer of tbe bridge and tbe witness on tbe other. If its purpose was to show thait the way witnessed travelled was tbe safer of tbe two, then tbe answer to tbe question would have involved the opinion of tbe witness and 'the objection was properly sustained.

Tbe other exception reserved to tbe exclusion of testimony is not insisted on.

The case was clearly one for tbe jury and we are unwilling to affirm that tbe trial judge erred in refusing tbe motion for a new trial.

Affirmed.

McClellan, C. J., Simpson and Anderson, J.J., concurring.