Alabama Fuel & Iron Co. v. Ward

• Citation: 69 So. 621,194 Ala. 242
• Decision Date: 17 June 1915
• Docket Number: 45
• Court: Supreme Court of Alabama
• Parties: ALABAMA FUEL & IRON CO. v. WARD.

69 So. 621

194 Ala. 242

ALABAMA FUEL & IRON CO. v. WARD.

No. 45

Supreme Court of Alabama

June 17, 1915

Appeal from City Court of Birmingham; C.W. Ferguson, Judge.

Action by H. Ward against the Alabama Fuel & Iron Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Transferred from the Court of Appeals of Alabama under section 6, Act April 18, 1911 (Gen.Acts 1911, p. 449).

The following counts of the complaint were submitted to the jury:

"The plaintiff claims of the defendant, a corporation the sum of $10,000, as damages, for that heretofore, on, to wit, the 8th day of January, 1914, plaintiff was a servant or employé of the defendant, and while engaged in such service or employment in and about handling, or assisting in the handling, of certain heavy machinery, at or near what is known as 'Margaret Mine,' in the state of Alabama, a heavy piece of said machinery fell upon the plaintiff's foot, crushing and bruising a bone or bones in his foot cutting, bruising, lacerating, and otherwise injuring plaintiff's foot and other portions of his body rendering plaintiff sick and sore; rendering him unable to perform his usual labor for a long period of time, whereby he lost money, permanently disabling plaintiff; causing him to suffer great physical pain and mental anguish; and rendering it necessary for plaintiff to expend money, and obligate himself to expend large sums of money, for medical and surgical attention and medical treatment in and about attempting to heal and cure his said wounds and bruises.

"And plaintiff avers that all of his injuries and damages were proximately caused by the negligence of the defendant, which negligence consisted in this: The defendant negligently failed to provide the plaintiff with a reasonably safe place for him to perform the duties of his employment in.

"Count 2.

"The plaintiff claims of the defendant, a corporation the sum of $10,000 as damages, for that heretofore, on, to wit, the 8th day of January, 1914, plaintiff was a servant or employé of the defendant, and while engaged in such service or employment, in and about handling, or assisting in the handling, of certain heavy machinery, at or near what is known as 'Margaret Mine,' in the state of Alabama, a heavy piece of said machinery fell upon the plaintiff's foot, crushing and bruising a bone or bones in his foot; cutting, bruising, lacerating, and otherwise injuring plaintiff's foot and other portions of his body; rendering plaintiff sick and sore; rendering him unable to perform his usual labor for a long period of time, whereby he lost money; permanently disabling plaintiff; causing him to suffer great physical pain and mental anguish; and rendering it necessary for plaintiff to spend money, and obligate himself to expend large sums of money, for medical and surgical attention and medical treatment in and about attempting to heal and cure his said wounds and bruises.

"And plaintiff avers that all of his injuries and damages were proximately caused by the negligence of the defendant, which negligence consisted in this: The defendant negligently failed to provide the plaintiff with reasonably safe and suitable tools and appliances with which to perform the duties of his said work.

"Count 4.

"The plaintiff claims of the defendant, a corporation, the sum of $10,000 as damages, for that heretofore, on, to wit, the 8th day of January, 1914, plaintiff was a servant or employé of the defendant, and while engaged in such service or employment, in and about handling, or assisting in the handling, of certain heavy machinery at or near what is known as 'Margaret Mine,' in the state of Alabama, a heavy piece of said machinery fell upon the plaintiff's foot, crushing and bruising a bone in his foot, cutting, bruising, lacerating, and otherwise injuring plaintiff's foot and other portions of his body; rendering plaintiff sick and sore; rendering him unable to perform his usual labor for a long period of time, whereby he lost money; permanently disabling plaintiff; causing him to suffer great physical pain and mental anguish; and rendering it necessary for plaintiff to spend money, and obligate himself to expend large sums of money, for medical and surgical attention and medical attention in and about attempting to heal and cure his said wounds and bruises.

"And plaintiff avers that all of his injuries and damages were proximately caused by the negligence of a certain person, whose name is unknown to plaintiff, which person had been intrusted with superintendence over the handling of said machinery, and which person was in the service or employment of the defendant, which negligence consisted in this: The said person, while in the exercise of said superintendence, knowing that plaintiff was inexperienced in the line of work in which he was then engaged, negligently failed to instruct plaintiff and his co-workers as to the proper way and manner of handling said heavy machinery.

"Count 7.

"The plaintiff claims of the defendant, a corporation, the sum of $10,000 as damages, for that heretofore, on, to wit, the 8th day of January, 1914, plaintiff was a servant or employé of the defendant, and while engaged in such service or employment, in and about handling, or assisting the handling, of certain heavy machinery, at or near what is known as 'Margaret Mine,' in the state of Alabama, a heavy piece of said machinery fell upon the plaintiff's foot, crushing and bruising a bone or bones in his foot, cutting, bruising, lacerating, and otherwise injuring plaintiff's foot and other portions of his body; rendering plaintiff sick and sore; rendering him unable to perform his usual labor for a long period of time, whereby he lost money; permanently disabling plaintiff; causing him to suffer great physical pain and mental anguish, and rendering it necessary for plaintiff to spend money, and obligate himself to expend large sums of money, for medical and surgical attention and medical attention in and about attempting to heal and cure his said wounds and

bruises.

"And plaintiff avers that all of his said injuries and damages were proximately caused by the negligence of one Eaues, a person who had superintendence intrusted to him by the defendant, and who was in the service or employment of the defendant, which negligence consisted in this: The said Eaues, while in the exercise of such superintendence, negligently caused or allowed said heavy piece of machinery to fall upon the plaintiff's foot.

"Count 8.

"The plaintiff claims of the defendant, a corporation, the sum of $10,000 as damages, for that heretofore, on, to wit, the 8th day of January, 1914, plaintiff was a servant, agent, or employé of the defendant, and while engaged in such service or employment, in and about handling, or assisting in handling, certain heavy machinery at or near what is known as 'Margaret Mine,' in the state of Alabama, a heavy piece of said machinery fell upon the plaintiff's foot, crushing and bruising a bone or bones in his foot, cutting, bruising, lacerating, and otherwise injuring plaintiff's foot and other portions of his body; rendering plaintiff sick and sore, and rendering him unable to perform his usual labor for a long period of time, whereby he lost money; permanently disabling plaintiff, and causing him to suffer great physical pain and mental anguish; and rendering it necessary for plaintiff to spend money, and obligate himself to expend large sums of money, for medical and surgical attention and medicine in and about attempting to heal and cure his said injuries and damages.

"And plaintiff avers that all his said injuries and damages were proximately caused by the negligence of one Eaues, a person who had superintendence intrusted to him by the defendant, and who was in the service or employment of the defendant, which negligence consisted in this: The said Eaues, while in the exercise of said superintendence, negligently caused or allowed said work to be carried on without the use of proper tools and appliances."

The following excerpts of the oral charge are pointed out by assignments of error 8:

"Well, they say that they failed to provide him with safe instruments to work with, that in pinching this thing along, whatever the evidence shows it was, that instead of using a pinch bar, he used a piece of scantling; if you are reasonably satisfied from the evidence in that regard that that was done, why, he might recover on that account, provided you find that that was an unsafe implement to work with.

"(9) It is the duty of defendant company where a person enters their employ and says he is not acquainted with the character of work to be done, to instruct him.

"(10) Plaintiff claims in one count that they negligently failed in that respect; says that they are wanting in due care in that particular. If you can say that that was the proximate cause of his injury, there can be a recovery under the count that sets up that fact of the case."

The following charges were refused to defendant: (C) General affirmative charge; (F) affirmative charge as to the second count; (G) affirmative charge as to the first count.

Stokely, Scrivner & Dominick, of Birmingham, for appellant.

Burgin, Jenkins & Brown, of Birmingham, for appellee.

THOMAS J.

The suit was brought for alleged personal injuries received by appellee while in the employment of appellant.

Counts 5 and 6 were withdrawn. Appellant's demurrer to counts 1, 2, 4, 7, and 8 was overruled, and this ruling is assigned as error.

The first and second assignments of error challenge the sufficiency of the complaint, for the failure to aver that when the plaintiff was injured he was in the discharge of his duties under his employment by the defendant. The averment was that:

"The p

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