Alabama Great Southern R. Co. v. Neal

• Citation: 62 So. 554,8 Ala.App. 591
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. NEAL.
• Decision Date: 13 May 1913
• Court: Alabama Court of Appeals

62 So. 554

8 Ala.App. 591

ALABAMA GREAT SOUTHERN R. CO. v. NEAL.

Court of Appeals of Alabama

May 13, 1913

Appeal from Circuit Court, Greene County; S.L. Brewer, Judge.

Action by Hudson Neal, pro ami, against the Alabama Great Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The substance of the pleadings, the facts, and the assignments of error relative to evidence sufficiently appear from the opinion. The following charges were refused to defendant:

(1) General affirmative charge.

(3) Affirmative charge as to second count.

(4) Affirmative charge as to fourth count.

(5) Affirmative charge as to the fifth count.

(6) Same as to the sixth count.

(7) Same as to the seventh count.

(9) Same as to the eighth count.

"(15) A general order by a superintendent of certain work is not a special order to do a particular work, and a recovery cannot be had against a defendant where only a general order is shown, and where it is not shown that a special order is given by the superintendent to do the particular work."

"(17) The jury cannot find a verdict for the plaintiff in this case by reason of any negligent order which may have been given by C.N. Bible, even if such order proximately caused the injury of which plaintiff complained.

"(18) Under the evidence in this case, Bible did not give any negligent order which caused the injury complained of by plaintiff.

"(19) You cannot find a verdict for plaintiff in this case unless you should believe from the evidence that Bible gave the plaintiff a negligent order, and that at the time the said Bible gave the order to plaintiff Bible knew or had good reason to apprehend that the obedience to such order by the plaintiff would probably result in injury to the plaintiff."

"(21) Under the evidence in this case, the plaintiff was guilty of negligence which proximately contributed to his own injury.

"(22) Under the evidence in this case, Bible was not guilty of any such negligence as would entitle plaintiff to recover against the defendant."

"(26) The plaintiff assumed the risk of being injured by placing himself at the point under which Tinnell was at work."

A.G. &amp E.D. Smith, of Birmingham, for appellant.

McKinley, McQueen & Hawkins, of Eutaw, for appellee.

THOMAS, J.

The complaint contained originally nine counts. The first was withdrawn, and demurrers were sustained to the third and ninth, leaving as the complaint upon which the trial was had counts 2, 4, 5, 6, 7, and 8, to each of which a demurrer was also interposed, but overruled. These counts are all predicated upon subdivision 2 of section 3910 of the Code (the Employer's Liability Statute), confessedly so except counts 4, 5, and 8, each of which appellant (defendant below) contends, in one ground of demurrer thereto, is a misjoinder of an action under subdivision 2 with an action under subdivision 3 of said statute.

We think this contention without merit: First, because, even assuming that there is a joinder of the two causes of action it would not necessarily be a misjoinder, and is never such where the injury complained of is the result of a concurrence of separate acts of negligence, though each be separately actionable under the statute cited (see Bridges v. T.C.I & R.R. Co., 109 Ala. 292, 19 So. 495; Bear Creek Mill Co. v. Parker, 134 Ala. 299, 32 So. 700); second because, under the construction we give these counts, there is in fact no joinder in them of separate causes of action, and consequently there is and can be no misjoinder.

Each of the counts, we think, as said, is based on subdivision 2 of the statute; the gravamen of each being the alleged negligence of Bible, defendant's superintendent or foreman, whilst in the exercise of his superintendence, in negligently causing the piece of timber, which fell upon plaintiff below and produced the injuries complained of, to be pushed, dropped, or thrown down from above the place where plaintiff, under said Bible's instructions, was at work in repairing or remodeling the building. It is true that each of the counts alleges that plaintiff was at work under the superintendence of said Bible and was required by him to do the particular work in which he (plaintiff) at the time of the injury was engaged; yet this act on the part of Bible in directing plaintiff where to work and what work to do is not alleged to have been negligent, nor is blame anywhere imputed to him therefor. Hence, certainly, the pleader was not predicating his right of action upon this act of Bible's but it was alleged as a fact merely to show that plaintiff was rightfully at work at the place where he was injured, as inferentially imposing on Bible, the superintendent of the work, whilst in the exercise of his superintendence, the duty either to refrain, whilst plaintiff was there, from having the pieces of timber above plaintiff sawed off and dropped down or, if he had it done, to have it done in such a way or manner as not to endanger the safety of plaintiff below. This latter, it is in effect alleged in all the counts, is what Bible, as such superintendent, negligently did or negligently failed to do, and makes each count one under subdivision 2, and not one under subdivision 3, of the statute. Collier v. T.C.I. & R.R. Co., 155 Ala. 378, 46 So. 487; Reiter Mfg. Co. v. Hamlin, 144 Ala. 193, 40 So. 280; Bessemer L. & I. Co. v. Campbell, 121 Ala. 52, 25 So. 793, 77 Am.St.Rep. 17; Robinson Mining Co. v. Tolbert, 132 Ala. 463, 31 So. 519; So. Ry. Co. v. Goins, 1 Ala.App. 370, 56 So. 253; Randle v. B'ham Ry. Co., 158 Ala. 532, 48 So. 114; General Supply Co. v. Shelton, 157 Ala. 637, 47 So. 593; Creola Lumber Co. v. Mills, 149 Ala. 477, 42 So. 1019; So. Ry. Co. v. McGowan, 149 Ala. 452, 43 So. 378. It follows that all of the demurrers attacking any of the counts on the ground of a misjoinder, or on account of the insufficiency of their allegations to make a case under subdivision 3 of the statute, are without merit.

All of the counts were also separately and severally demurred to upon a number of other grounds, which sought to test the sufficiency of their allegations to state a cause of action under subdivision 2 of the statute; but the only ones of these demurrers necessary to be considered or discussed are those insisted upon in the brief of appellant's counsel, and which may be thus stated in substance: First, that each count fails to allege or show that plaintiff was injured while in the discharge of the duties of his employment; second, that each count fails to allege or show that said Bible knew of any dangerous conditions surrounding the work of plaintiff, or had any cause or reason to suspect or believe that by reason of his acts and doings in the premises there was any danger to the plaintiff or that the same would probably result in injury to the plaintiff.

The first mentioned of these criticisms is directed in argument specifically to counts 2 and 5; it being impliedly conceded that, if they are held sufficient in this particular, the others are. On this point count 2 alleges that "plaintiff was an employé of the defendant and was required by defendant to assist in the repair of or erection of an addition to a certain frame building, *** and that whilst in said employment and acting within the line of his duty" he received the injuries complained of; and count 5 alleges that "plaintiff was in the employ of defendant as a member of defendant's builders or construction gang *** and was required to cut certain bridging, etc., upon the foundation or sleepers of a certain addition [to defendant's depot at Eutaw], etc., and that while he was so engaged in said work" was injured. From these quotations it seems to us too clear for discussion that plaintiff received his injuries while in the discharge of the duties of his employment. Moss v. Mosely, 148 Ala. 168, 41 So. 1012; Laughran v. Brewer, 113 Ala. 509, 21 So. 415; Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 193, 40 So. 280. We find nothing in the cases cited by appellant's counsel in brief to conflict with this view, but on the contrary we regard them as in entire harmony, to wit: Logan v. C.I.C. Co., 139 Ala. 552, 36 So. 729; Green v. Bessemer C.I. & L. Co., 162 Ala. 609, 50 So. 289; S.L. & S.F.R.R. Co. v. Sutton, 169 Ala. 389, 55 So. 989, Ann.Cas. 1912B, 366.

The objection that the counts fail to show that Bible knew of any dangerous condition surrounding the work of plaintiff, or had any reason to believe that the pieces of timber he directed to be sawed off in the roof of the building would probably drop down and result in injury to plaintiff, is, under the latest adjudications of our Supreme Court on the subject equally untenable, in the light of the character of the several allegations of negligence contained in all the counts. Counts 2 and 7 in this particular are as follows: "And the plaintiff avers said injury to have been proximately caused by reason of the negligence of one Bible, a person in the service or employment of the defendant, who had superintendence intrusted to him, whilst in the exercise of such superintendence, which negligence consisted in this: That the said Bible negligently allowed work of defendant to be performed in a manner dangerous to the safety of plaintiff, whereby a piece of timber was dropped or thrown or allowed to fall from a place above where plaintiff was at work, striking the plaintiff on the head and wounding and injuring him as aforesaid; hence this suit." The two counts are a substantial duplicate of a count held good by our Supreme Court against an objection, covering the objection here, that the count purports to set out the facts constituting the negligence complained of, but fails to make out a case of negligence. The decision...