43 So. 348 | Ala. | 1901
The defendant (appellant) Avas engaged in operating a coal mine in Walker county. A part of its ways consisted of a trestle AAdiich led from the mouth of the mine to the tipple. Tram cars loaded with coal were run over the trestle from the mine to the tipple, where the coal Avas loaded from the trams to the railroad cars. The main trestle Avas about 1,400 feet long, but the part of it which was the side track Avas,
•This.-’count is framed--in respect to subdivision 1 of section-1749 of the- Code of 1896, which provides for the liability of the. master to-the servant when, the servant receives a personal injury in. the, service or business of the master, “caused by reason of any. defect in the .condition of the ways, works, machinery, ,or plant connected with or used in the business of the master or employer.” -The count-is in this language:. “Plaintiff claims of defendant .fl0,000-as damages, for that.heretofore, on, -to-wit. the 26th day .of April, 1905, defendant was engaged in the business of mining and loading coal on cars,- and. in connection with said business, used c trestle at or near Dora, in Walker county, Alabama; that on .said--day,-while plaintiff was in the service .or employment of defendant and engaged in or about said business of defendant on said trestle, said trestle or part thereof gave way or fell, and plaintiff was thrown or caused to fall a great distance, and suffered, the injury or damages set out in the first count of this complaint in this cause. Plaintiff alleges that said trestle gave way or fell as aforesaid, and plaintiff suffered the
The argument and contention of the appellant is that the evidence showed the trestle was 1,400 feet long, and 30 to 40 feet high, and that the general averment that a trestle of that iAaguitu.de was defective, without stating in what part the defect existed, is not definite enough. So 'far as the averments of the count go, the dimensions of the trestle are not revealed, and resort to the evidence cannot be had in determining the sufficiency of the pleading. Another case relied on by appellant is that of Whatley v. Zenida Coal. Co., 122 Ala.
To charge on an employe the. assumption of a risk, it is not enough that the condition of the ways, works, or machinery is open to ordinary observation. It is necessary that he should know, or by the exercise of common observation might have known, the risk attending the use of them. For this reason, besides others pointed out in the demurrer, plea 11 is bad, and the court properly sustained the demurrer to it. — Beach on Contributory Negligence (2d Ed.) p. 467, § 361; Id. p. 447, 370; Bridges v. Tenn. Coal, Iron & R. R. Co., 109 Ala. 287, 293, 19 South. 495; Sou. Ry. Co. v. Guyton, 122 Ala. 231, 25 South. 34; Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 South. 445; Wuotilla v. Duluth Lumber Co., 37 Minn. 153, 33 N. W. 551, 5 Am. St. Rep. 832; Russell v. Minneapolis, etc., Ry. Co., 32 Minn. 230, 20 N. W. 147; Cook v. St. Paul, etc., Ry. Co., 34 Minn. 45, 24 N. W. 311; Davis v. St. Louis, etc., Ry. Co., 53 Ark. 117, 13 S. W. 801, 7 L. R. A. 283; Eddy v.
It does not follow, from the fact that plaintiff was at work on''the trestle, that it was his duty from his position to discover any defective or dangerous condition of the trestle. The defendant owed plaintiff the duty of using due care to provide a trestle reasonably safe for the running of cars, and plaintiff, in the. absence of knowledge to the contrary, was authorized to assume, and rely on the assumption, that this duty had been performed. Plea 17 presents a non sequitur. The demurrer to the plea was well sustained.—Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 South. 445.
The court properly excluded the answer' of witness Tadlock to the question: “He (plaintiff) knew the way the- trestle was shaky?”—Bailey’s Case, 107 Ala. 151, 18 South. 234; Cen. of Ga. Ry. v. Martin, 138 Ala. 531, 36 South. 426; Braham’s Case, 143 Ala. 28, 38 South. 919; Liner’s Case, 124 Ala. 1, 27 South. 436.
The ruling of the' court refusing'to exclude the answer of1 witness Blackburn, that “plaintiff said he had given out'in his back,” may he sustained on the ground' that the answer was' responsive to the question, and no 'Objection was made to the-question. “The law will not permit a party to wait until the witness answers, and if favorable get the benefit of it, and if prejudicial move to exclude it.”-—McCalman’s Case, 96 Ala. 98, 11 South. 408; Billingsley’s Case, 96 Ala. 126, 11 South. 409; Washington’s Case, 106 Ala. 58, 17 South. 546; Wright’s Case, 108 Ala. 60, 18 South. 941; Ellis’ Case, 105 Ala. 72, 17 South. 119; Downey’s Case, 115 Ala. 108; 22 South. 479.
There is evidence in the record which tends to show the plaintiff is permanently injured. In estimating the-' amount of damages to be given for permanent injury, one of the elements to he considered seems to be the former occupation of the plaintiff and the amount of
Dr. Phillips was examined in chief by the defendant as a medical expert. From the manner in which his testimony appears in the record, we cannot say that he did not testify on his examination in chief with respect-to the kidney not being detached. If he did, then, of course, the trial court properly allowed the plaintiff -on cross-examination to inquire of him as to the symptoms of a kidney detached from its moorings. We do not decide' that it was not a proper subject for cross-examination, even if he had not testified on' the éxámination in chief about the kidney. Being an expert, it was within the discretion of the court -to widen the range of cross-examination, even to the inclusion of'matter not pertinent to the issues--to test the witness’s means of knowledge, memory, accuracy, or credibility.-—Stoudenmeir v. Williamson 29 Ala. 558; Braham’s Case, 143 Ala. 28, 38 South. 919.
The tenth assignment of error contains an- erroneou's statement, when compared with the-record, in this:- The record fails to show that any objection was made to the question propounded to Dr. Phillips: “Would a-manióse flesh and feel bad with a thing of that sort?’’ - ■ ■
The eleventh, twelfth, and thirteenth grounds in-the assignment of errors are not insisted on, and we pass them without consideration. • ■
We cannot say the evidence was entirely.without conflict as to the proper construction of the trestle originally. It is true defendant’s witnesses McFarland and-Baird swore it was; but the record shows that McFarland swore that the cap on the bent only projected three feet over the “batter post,” and it shows Baird -swore that the track was placed so that the outside rail was
The first postulate in charge -5, refused to the defendant, renders the charge a bad one. It put on the plaintiff the unqualified duty of examining the trestle for defects or “dangers.” The plaintiff, if-he had no knowledge of the defect — and his evidence tends to show he had none — was authorized to assume there were no defects in the trestle.—L. & N. R. R. Co. v. Hawkins, 92 Ala. 241, 9 South. 271; Osborne v. Ala. Steel & Wire Co., 135 Ala. 571, 33 South. 687; section 1749 of the Code of 1896. Upon the same consideration charge 6 was properly refused to the defendant.
The court, at the request of the plaintiff in writing, gave six charges, all of which are assigned as error; but the insistance of appellant relates only to charges 6 and 8. It is insisted, or rather suggested, by appellant, that each of these charges invades the province of the jury. There is no evidence which tends to show that defendant put the duty of inspecting the trestle on the plaintiff, or that any one ever told plaintiff that a cap of the trestle was broken; and while the charges do not assert any proposition of law and might have been refused, yet the giving; of them does not constitute reversible error.-—Peck v. Ryan, 110 Ala. 336, 17 South. 733. It is true that, to support the verdict, the jury must have found that there was a defect in the trestle. It is further true that under the pleadings, if the plaintiff knew of the defect, the defendant was absolved from liability. The witnesses for the plaintiff testified to the defect, and their evidence tended to show circumstances fi’om which- the jury might have inferred ¡that the condition of the trestle was discoverable by ordinary observation;
The only ground for the. new trial insisted upon is that the. verdict of the jury is contrary to the evidence. The court did not err in overruling the motion.—Ala. Mid. Ry. Co. v. Brown, 129 Ala. 282, 29 South. 548; Jones v. Tucker, 132 Ala. 305, 31 South. 21; Cobb v. Malone, 92 Ala. 630, 9 South. 738.
We have found no reversible error, and the judgment is affirmed.
Affirmed.