143 Ala. 603 | Ala. | 1904
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 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
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 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
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.