48 So. 109 | Ala. | 1908
The complainant contained four counts, but the first and fourth are not here for review, the trial court having eliminated them by charges given at the request of the defendant.
The second and third counts are predicted upon the second subdivision of the employer’s liability statute
Tested by the numerous decisions of this court, it is obvious that the counts are sufficient, and that the demurrers were properly overruled. — Williamson Iron Co. v. McQueen, Adm’r, 144 Ala. 265, 40 South. 306, and cases there cited.
The plaintiff, as an employe of the defendant, Avith five others of defendant’s servants, Avas on the 17th day of January, 1907, engaged in loading lumber on a “lumber buggy” or tram car and moving it, on the car, from one part of defendant’s yard to another, all under the supervision of Frank Rich, defendant’s superintendent. The car stood on a standard-guage track, the sides projecting slightly over the track, and was 5 or 6 feet long, and the floor was 2 or 2%feet above the track. Said lumber consisted of pieces 3%x4 or 3*4x5 inches, 16 feet long, and these were being loaded onto the car lengthwise, in tiers, and over the entire width of the car. The testimony as to the heigth to which the lumber was thus stacked on the car varied the height from 2 feet to 4 feet. After being loaded, the car was rolled onto a turntable to be shifted to another track. The turntable was made fast by a latch which fitted into a slot. After the car was placed on the table, the super
The first question presented for consideration by the charges refused to the defendant is whether or not the plaintiff was entitled to have the issue of negligense vel non passed upon by the jury, the insistence of the appellant (defendant) being that there is nothing in the evidence which would afford a reasonable inference that the falling of the lumber was the result of negligence on the part of defendant’s superintendent. In this connection, appellant’s counsel makes the point, broadly, that the doctrine or maxim res ipsa loquitur has no application in cases between master and servant, and, therefore, that the falling of the lumber itself cannot form a predicate for reasonable inference of negligence. While it must be conceded that this doctrine is more freely and appropriately applied in cases of passenger and carrier, yet not only has this court applied the doctrine in a case between master and servant (Tenn., etc., Co. v. Hayes, 97 Ala. 201-207, 12 South. 98), but — as will be seen by reference to cases cited in note 8 to text, page 2303, 2 Labatt, Master & Servant — courts of other jurisdictions have, under certain circumstances, applied the
In the case at bar the evidence shows the dimensions of the lumber, the dimensions of the car, the manner in which the lumber was loaded on the'car, the description of the turntable, and, in addition, tends to show that the load was unusually large, considering the length of the lumber. Concerning it, a witness testified: “I call it an extraordinary large load for the length of it.” The witnesses for plaintiff, it is true, testified that they did not know what caused the lumber to fall off, but they testified that the car was standing perfectly still, and that there was no “jar or shock.” It cannot be doubted it was a duty the defendant company owed the plaintiff, to see to it, through its superintendent, that the car was properly and securely loaded. The superintendent was'present for that purpose; he knew the conditions of the track on which the car was to run (or it was his duty so to be advised) ; he knew the dimensions of the car and of the lumber, and he saw how the lumber was loaded. Under the testimony, we think it more probable that the falling of the lumber was due to a cause for which defendant was responsible than to a cause for which it was not responsible. In other words, we think the testimony warrants the inference that the falling of the lumber might reasonably be attributed to overloading, or to the improper loading of the car, which would constitute negligence. As was aptly said by the trial judge, in response to the motion for a new trial: “It being the duty of the superintendent to oversee the loading and moving of the cars, it was certainly his duty to be acquainted with the conditions under which
Upon the whole, the court is not of the opinion that the facts proved left the question as to what caused the injury wholly in conjecture, as distinguished from inference; but the court is of opinion that the trial court properly regarded the question of negligence vel non one for the determination of the jury, and committed no error in declining to exclude the evidence offered by plaintiff.
The testimony for the defendant tended to show that the lumber was caused to fall by the .plaintiff’s dropping the latch against, instead of in, the slot; and that this jarred the car to such an extent as to cause the lumber to fall. It also tended to show that the manner in which the plaintiff latched the table was not the proper way; that he should have used a stick, and not have gone around with the car. In respect to these two defenses,' it should suffice to say the testimony was in conflict. Furthermore, even if the stick was the proper implement to be used in latching, and if it had been used by the
Upon the foregoing considerations, it follows that the court committed no error in refusing charges 2, 3, and 4, requested by the defendant. It may also be said of charge 3 that it is in bad form.
Charge 5, requested by the defendant, is subject to the criticism, indulged by appellee’s counsel, that it assumes that plaintiff Avas guilty of negligence. We think it subject also to the criticism that was placed upon charge 5 (defendant’s series) requested in the Miller Case, 107 Ala. 40, 60, 19 South. 37.
The court was under no duty to give charge 1. It asserts no proposition of law. — Mobile, etc., Co. v. Walsh, 146 Ala. 295, 40 South. 560.
The court gave charge 10 at plaintiff’s request. This action has been assigned as error, but appellant does not insist upon the assignment.
There is no reversible error in the ruling of the court allowing plaintiff to challenge juror Burgess. — Adams v. Olive, 48 Ala. 551, and cases there cited; Haynes v. Crutchfield, 7 Ala. 189, 195.
This brings us to a consideration of the rulings of the court upon the admissibility of testimony. Defendant asked its witness Worsham this question: “You have stated there was a safe Avay to have done it (latch the table). I will ask you whether getting under and taking the latch in your hand and going around with the latch was a safe way?” The ruling of the court, sustain
The sixth ground in the assignment of errors mistakes the question sought to he reviewed, and cannot therefore claim the attention of the court.
We have not been shown that the court should have granted the motion for a new trial.
No error appearing in the record, the judgment appealed from must he affirmed.
Affirmed.