Woodward Iron Co. v. Curl, 44 So. 969

Woodward Iron Co. v. Curl

44 So. 969 | Ala. | 1907

DENSON, J.

— This is an action to recover damages for a personal injury sustained by the plaintiff while an employe of the defendant as a blacksmith at defendant’s mines. The complaint originally contained 11 counts, and 7 were added by amendments. Demurrers were sus*223tainecl to the first, fifth, eleventh, twelfth, and fourteenth counts; and, as the appeal is taken by the defendant, these counts are not here for review. The grounds in the assignment of errors are numerous, and we find that it is necessary, under well-settled principles of law, to sustain a number of them, and a reversal of the cause will he ordered. Nevertheless, as another trial will probably follow on the remandment of the cause, it is our duty to notice the grounds of error insisted upon in the brief of appellant’s counsel.

Of the counts in the complaint to which demurrers were overruled, the second, sixth, seventh, eighth, thirteenth, fifteenth, sixteenth, seventeenth, and eighteenth rely for recovery on the negligence of the defendant company, and are not based on the employer’s .statute. The third, fourth, ninth, and tenth counts are predicated upon the employer’s statute. — Code 1896, § 1749. ■ It must be conceded that an averment that plaintiff was injured while in the employment of the defendant falls short of showing that he was in the discharge of any duty imposed upon him by his employment at the time of his injury. This is the extent of the averments in this respect in the first paragraph of the second count, in which the injury, the circumstances attending it, and the relations of the parties are alleged. In the second paragraph of that count it is alleged: “It was the duty of the defendant to provide servants of reasonable skill and experience to superintend the services in which the plaintiff was engaged at the time of his injuries; and plaintiff avers that it was negligent, in that it failed to provide servants of reasonable skill and experience in and about the doing and supervising of the services in which plaintiff was engaged, and as a proximate consequence of such negligence, plaintiff was injured as aforesaid.” Construing the count most strongly against *224the plaintiff, we feel that we are authorized to conclude that the services in which he was engaged at the time of his injury were not within the scope of his employment —not such as he was employed to perform; so that, if the count shows that the plaintiff was, at the time the injury occurred, engaged in the discharge of duties imposed upon him by his contract of employment, it does so only iuferentially. Essential facts of this character should not be left to inference and conjecture in a complaint. The court, therefore, erred in overruling the demurrer which points out this defect in the second count. —Sloss-Sheffield Steel & Iron Co. v. Mobley, Adm’r. etc., 139 Ala. 425, 36 South. 181; Virginia Bridge Co. v. Jordan, 143 Ala. 603, 42 South. 73. On the same considerations, the demurrer pointing out the same defect in counts 3, 4, 6, 9, and 10 should have been sustained, and the court committed reversible- error in not sustaining it. Moreover, the ninth and tenth counts fail to show any necessity for the plaintiff to cross the track at the time and place alleged. — Virginia Bridge Co. v. Jordan, supra.

We are of opinion that the remaining counts to which demurrers were overruled are not open to the ground of demurrer under consideration. Counts 2, 13, and 15 attribute the injury to the negligent failure of the defendant to employ servants of reasonable skill and experience, while counts 6 and 18 assign as the cause of the injury the negligent failure of the defendant to provide a sufficient number of servants to conduct the work in a reasonably safe manner. The master owes as a duty to his servant, in respect to the employment of co-employes, taking into consideration the nature of the employment, the- exercise of reasonable care — such care only as men of reasonable and ordinary prudence exercise. “If the employment involves special knowledge and experience, *225only men of special knowledge and experience should be engaged. If the work may be well done by the unskilled and inexperienced, it cannot be said that the master is lacking in the measure of care he owes to other employes, should he employ unskilled and inexperienced men upon it.” The master does not warrant the competency of his servants, and to permit a recovery it must appear that he failed to use ordinary care in the selection of them. — Holland v. T. C. I. & R. R. Co., 91 Ala. 444, 450, 8 South. 524, 12 L. R. A. 232; Dresser, Employer’s Liability, p. 402, § 89. Counts 2, 13, and 15 show the nature of the business or work, aver that it was the duty of the defendant to employ servants of reasonable skill and experience, and allege a negligent failure of the defendant to engage such servants; and under our liberal system of pleading we are of the opinion that these counts are not open to the demurrer which raises the point under discussion. Nor are they open to the ground of demurrer that causal connection is not shown between the act causing the injury and the negligence averred. For the same reasons similar demurrers to counts 6 and 18 were not well taken.

The demurrer to the seventh and eighth counts, insisted upon by the appellant, is that these counts fail to show the relationship between plaintiff and defendant out of which duty springs to observe care for the plaintiff’s safety; in other words, that, construing these counts against the plaintiff, he was no more than a trespasser on the premises of the defendant, to whom the defendant owed only the duty not to willfully or wantonly injure him, or the duty to use all reasonable means to conserve his safety after his peril was known to the defendant. It will be borne in mind that these counts show that the railway operated by the defendant was *226operated for its own private purposes, in connection with its mines, and, so far as is shown by the counts, only on its private. premises; and in this view the mere averment that the plaintiff had occasion to cross the track, without any averment as to any relationship between him and the defendant, does not relieve the plaintiff from the attitude of a trespasser. Consequently the counts fail in their averments to fix any duty on the part of the defendant to the plaintiff, and the demurrers to them should have been sustained.

The ninth count attributes the injury to the negligence of Jim Moore while in the exercise of superintendence. The bill of exceptions shows that the court, at the written request of the defendant, charged the jury that there could be no recovery on account of alleged negligence of Jim Moore. TIence, if there was error in overruling the demurrer to count 9, it affirmatively appears that it worked no injury to the defendant; and we shall not consider the merits of that demurrer. — Alabama Steel & Wire Co. v. Griffin, 149 Ala. 423, 42 South. 1034.

Count 10 alleges that the injury was “a proximate consequence of the negligence of a person in the service of the defendant who had superintendence intrusted to him, whilst in the exercise of such superintendence, to-wit, one Ellis, who was in charge of the car that struck plaintiff as aforesaid; that said negligence consisted in this, towit: that he allowed said car to run down said tracks without any means by which the motion thereof could be controlled, or without giving any warning or signal to the plaintiff.” It is manifest that, notwithstanding the pleader may have intended to state a cause of action in this count'under subdivision 2 of section 1749 of the Code of 1896, the facts averred do not bring the case within that subdivision, and the sufficiency of *227the count must he tested by subdivision 5 of that section of the Code. This subdivision, in respect to a person in charge of a car, relates to cars on a railway, and this subdivision, it has been expressly held, was enacted for the benefit of those engaged in the hazardous business of operating a railroad, and that it is not sufficient that the complaining employe was employed at a plant by the same master, who also owned and controlled a railroad, which may be operated in furtherance of the business of the plant. His duty must be in and about the railway. — Alabama Steel & Wire Co. v. Griffin, 149 Ala. 423, 42 South. 1034, and authorities there cited. In respect to this question, count 10 here is in the same category with counts 9 and 11 that were held bad in the case cited supra, for the reason that there is no averment that the plaintiff was employed in or about the railway or that he was discharging any duty in connection with the railway. The court erred in overruling the demurrer to count 10.

Counts 16, 17, and 18 each show that the plaintiff was at the defendant’s mining plant by its invitation, instance or request. This is sufficient in respect to the point made by the demurrer that these counts fail to show that plaintiff occupied such relation to the defendant as to entitle him to the exercise of ordinary care on the defendant’s part. — M. & E. Ry. Co. v. Thompson, 77 Ala. 448, 54 Am. Rep. 72; Alabama Steel & Wire Co. v. Clements, 146 Ala. 259, 40 South. 971.

We have considered all assignments of error, in respect to the judgment of the court on the demurrers to the complaint, that have been insisted upon in brief of appellant’s counsel. Issue was joined on the plea of the general issue and pleas of contributory negligence on the part of the plaintiff, in that he negligently went between the cars on the track.

*228The conclusion we have reached in respect to the refusal of the court to give the affirmative charges requested by the defendant renders it unnecessary to notice in detail the charges given at the request of the plaintiff. While we will not say the court committed reversible error in giving charge 1 requested by the plaintiff (Virginia Bridge Go. v. Jordan, supra), we do say that such charges should never be given, as they tend to confuse the jury. — 1 Blashfield, Instructions to Juries, § 93; East Tennessee, etc., v. Lee, 90 Tenn. 570, 18 S. W. 268; Woodruff v. Hensley, 26 Ind. App. 592, 60 N. E. 312; Bryan v. Chicago, etc., 63 Iowa, 464, 19 N. W. 295; Fitzgerald v. McCarty, 55 Iowa, 702, 8 N. W. 646; Porter v. Knight, 63 Iowa, 365, 19 N. W. 282; Tipton v. Triplett, 1 Metc. (Ky.) 570; Hall v. Renfro, 3 Metc. (Ky.) 51; Bradshmo v. Mayfield, 24 Tex. 481; 2 Mayfield’s Dig. p. 577 (28).

After a most careful examination of the evidence in the record, we have failed to find any reasonable infer- • ence afforded thereby that the defendant did not provide servants of reasonable skill and experience, or that it did not provide a sufficient number of servants or superintendents in its business; and we have failed to find that the evidence affords any inference of negligence on the part of the defendant in this respect. Further, if it should be conceded that a sufficient number of superintendents were not employed, yet the evidence fails to trace plaintiff’s injury to any negligence in that respect. So it must follow that the court committed reversible error in refusing the affirmative charges as requested by the defendant on counts 2, 6, 13, 15, and 18.

There is no evidence which in the slightest degree tends to support the proposition that there was any defect in the ways, works, machinery, or plant connected with or used by the defendant, even construing “sprags” *229as a part of the plant. For this reason the affirmative charge requested by the defendant in respect to counts 3 and 4 should have been given.

The evidence shows that the plaintiff was employed by the defendant at its mines as a blacksmith; that the shop in which plaintiff worked was located on the opposite side of defendant’s tram railway from defendant’s tally house; that in the tally house drinking water was kept, and that it was customary for the employes of defendant at the mines to go to the tally house for water to slake their thirst; that about five minutes before the noon hour plaintiff left his shop and went to the tally house to get water; that he crossed the tram track between cars loaded with ore that were about two feet apart; and that on his return, after getting the water, and when he was in the act of crossing between the cars, they ran together and crushed his leg. In this state of the case, and on the authority of Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 115, 127, 42 South. 96, it must be held that in the interval when the plaintiff left his work to get water, he was entitled to the same immunity from injury on account of negligence as when he was at work — that his relation of employe was not severed by going for the water. Therefore at the time the injury occurred the plaintiff was defendant’s employe.

The seventh and eighth counts neither allege that at the time the plaintiff’s injury occurred he was an employe. Each is based on the theory that he was a stranger, crossing defendant’s tracks, and in the exercise of that right was entitled to the exercise of due care from defendant’s servants. The evidence, as has been observed, without conflict showed that at the time of plaintiff’s injury his right to be at the place where he was (at defendant’s mines, on its private property) depended upon his status as an employe. There was a fatal variance

*230in this respect between the allegations of each of these counts and the proof. In the case of M. & O. R. R. Co. v. George, 94 Ala. 221, 10 South. 154, this court said: “It being undisputed that plaintiff was an employe of defendant and a fellow servant of the engineer in charge of the engine, which it is alleged negligently ran over him, he is not entitled to recover under the first count of the complaint, as we have construed it to be a suit by a person not in the employment of the defendant, but lawfully on the track. • The liability for an injury to an employe, caused by the negligence of a fellow servant, rests on entirely different principles from the liability to a stranger on the track by license or invitation. The variance between the allegations of the first count and the proof is fatal. It follows that the court erred in refusing the affirmative charges as requested by the defendant in respect to counts 7 and 8. On the same considerations, the defendant’s affirmative charges in respect to counts 16, 17 and 18 should have been given.

The proof without conflict shows that the only duty which devolved on Ellis (Bushlin) was to retard the speed of the car after it left the “knuckle” by “spragging” the wheels of the car. It can in no sense be said that he had any superintendence intrusted to him. He had no one under him, and performed manual labor altogether. — Dantzler v. DeBardeleben, etc., 101 Ala. 309, 14 South. 10, 22 L. R. A. 361. The car was a tram car, hoisted out of the mines by a stationary hoisting engine at the top, with which it was connected by a cable; but when it got out of the mine the cable was detached and the tram car ran along a tram track, downgrade, of its own motion, to the tipple where it was dumped, whereupon it returned empty, by the same means to the mine. In accordance with the case of Alabama Steel & Wire Co. v. Griffin, 149 Ala. 423, 42 South. 1034, it would seem *231that the car was not one on a railway; bnt it is still clearer from the evidence that the plaintiff at the time was not employed in and about the railway, and that he was not discharging any duty in connection with the railway, so that, if it should be contended that the rail: way and the car thereon come within the meaning and influence of subdivision 5 of section 1749, Code 1896, and that Ellis was in charge of same, yet, for the lack of proof that the plaintiff ivas at the time employed in the discharge of duties about the railway, nothing can be taken by the plaintiff upon the theory that Ellis was in charge of a car on the railway. But the evidence shows that Ellis had nothing to do with starting the car. It was turned loose at the mouth of the mines, and his only duty was, from his position on the ground, to sprag the wheels. It cannot be said from this (within the meaning of subdivision 5) that he had charge of the car or cars. On these considerations, the affirmative charge in respect to the tenth count should have been given. — Ala. Steel & Wire Co. v. Griffin, 149 Ala. 423, 42 South. 1034.

It is not deemed necessary to consider the case as presented any further. For the errors pointed out, the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Tyson,-C. J., and Dowdell and Simpson , JJ., concur.