Woodward Iron Co. v. Boswell

75 So. 3 | Ala. | 1917

ANDERSON, C. J.

(1-3) This cause was submitted to the jury upon counts 8, A, and B. Count A is under the common law for a failure to exercise reasonable care to furnish the intestate a reasonably safe place in which to work, and the proof did not support that count. Hence the trial court erred in refusing the general charge requested by the defendant as to this count. It is the nondelegable duty of the master to exercise reasonable care to furnish a reasonably safe place to the servant, but when this is done the duty of keeping the place safe and in repair is delegable.—Southern Sewer Co. v. Hawkins, 192 Ala. 380, 68 South. 271, and cases there cited; Central Foundry Co. v. Bailey, 162 Ala. 627, 50 South. 346. From aught that appears from the proof, the furnace was safe when the intestate went to work at same, and his death, if from gas poison, as contended by the plaintiff, was proximately caused by the abnormal escape of gas, due to what is termed a “breakout,” being a defect occurring after the intestate went to work, and perhaps to the additional fact that the well was uncovered at or near the place of the “breakout,” and which had been previously covered.

Charges 3, 4, and 1, given at the request of the plaintiff, could have well been refused for failing to hypothesize “while in the exercise of superintendence.”—Linderman v. Tenn. Co., 177 Ala. 379, 58 South. 900. Moreover, given charge 1, as found on page 6 of the record, could have been well refused for the use of the word “even.” Whether or not the deficiency in these charges was supplied by the oral charge, or other special charges, so as to cure the error in giving same, we need not decide, as the case must be reversed for other reasons.

(4, 5) Charge 9, given for the plaintiff, and which will be found on page 7 of the record, could have well been refused, as it is confusing and misleading, if not otherwise bad. There was no error in giving charge 10 at the request of the plaintiff. There was no error in refusing the defendant’s charge marked No. 2, on page 9 of the record. It called for a comparison of duty, not presented by the issues in the case, if not otherwise bad. .

We think that the record sufficiently shows that the case was tried on counts 8, A, and B, and that there was sufficient evidence to take counts 8 and B to the jury. Hence there was no error in refusing the general charge, requested by the defendant as to the whole complaint.

(6) The trial court committed no reversible error in refusing the defendant’s requested charge, marked 10, on page 10 of the record. Whether good or not, it was amply covered by the given charges and the oral charge.

Dr. Dabney had testified as to the cause of the intestate’s death, and it was, of course, admissible to lay a predicate to contradict him, by showing that he had previously given a certificate, or certificates, to the effect that death was caused from gas. The only predicate laid was as to whether or not he made out a certificate for the wife to be sent to an insurance company, and not’ Another one for her to use in- removing the body. It is evident that the wife’s testimony as to removing the body of the intestate related to another certificate, as the one issued for the insurance seems to have been carried by the wife to Kidd, manager of the insurance company, and sent by him to Nashville. It is therefore evident that the one referred to for the purpose of moving the body was a different one, and no predicate was laid as to this one when Dr. Dabney was on the stand. On the other hand, it may be possible that she first used this certificate to move the body, and' then turned it over to Mr. Kidd, the manager of the insurance company. As to this the record discloses some confusion and uncertainty, and we need not determine whether or not there was reversible error in this ruling, as the case must be reversed for other reasons, and the confusion can be avoided upon the next trial.

The judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

Mayfield, Somerville, and Thomas, JJ., concur.