Alabama Power Co. v. Shaw

• Decision Date: 02 December 1926
• Docket Number: 7 Div. 617
• Citation: 111 So. 17,215 Ala. 436
• Parties: ALABAMA POWER CO. v. SHAW.
• Court: Alabama Supreme Court

111 So. 17

215 Ala. 436

ALABAMA POWER CO. v. SHAW.

7 Div. 617

Supreme Court of Alabama

December 2, 1926

Rehearing Denied Jan. 13, 1927

Appeal from Circuit Court, Shelby County; E.S. Lyman, Judge.

Action by John F. Shaw against the Alabama Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Admission of proof that plaintiff was regular worker at time of accident held reversible error.

Count 1 is as follows:

"Plaintiff claims of defendant $75,000, as damages for that heretofore, to wit, on the 3d day of June, 1924 plaintiff was in the service or employment of the operator of the waterworks system at Calera, Ala., to wit, C.W. Ade, and while upon the premises of plaintiff's said employer engaged in or about work for his said employer upon his premises, an object, to wit, a pulley or shaft, or a part or parts thereof, being a part of the equipment in the possession of his said employer upon said premises, fell upon or struck plaintiff, and as a proximate consequence thereof plaintiff's eye was gouged or forced out of its socket and plaintiff's eyesight was greatly impaired and plaintiff's jaws were broken, his nose was broken, his teeth were broken and otherwise injured, and a hole or holes were cut or made in plaintiff's face, and plaintiff was cut, bruised, mashed, strained, sprained, and otherwise injured in his face, head, eye, jaws, and various parts of his person, and was rendered unconscious and remained so for a long time, and was made sore and sick, was crippled and disfigured for life, and his nervous system and mind and brain were greatly injured or impaired, and plaintiff was rendered for a long time unable to work and earn money, and plaintiff suffered great mental and physical pain and anguish, and plaintiff was caused to lose much time from his work, and his ability to work and earn money was greatly impaired, and plaintiff was put to great trouble inconvenience, and expense for board, lodging, and services in a hospital or hospitals, and was put to great trouble, inconvenience, and expense for medicine, medical and surgical attention, nursing and care, all to his damage, wherefore he sues, and he also claims punitive damages.

"Plaintiff further avers that defendant, who was engaged in or about some work upon the premises of plaintiff's said employer, negligently caused said object to fall upon or strike plaintiff, upon the occasion aforesaid, and, as a proximate consequence of said negligence, plaintiff suffered said injury and damage."

To this count these grounds of demurrer were interposed:

"(1) For that same fails to aver any duty which the defendant owed to the plaintiff at the time and place alleged.

"(2) For that same fails to aver the breach by the defendant of any duty which it owed to plaintiff at the time and place alleged.

"(3) For that the same is vague, uncertain, and indefinite, in this, that same fails to aver how or in what manner the defendant was engaged in or about the premises of plaintiff's said employer.

"(4) For that same is vague, uncertain, and indefinite, in this that it fails to aver or inform the defendant of what the defendant was engaged in at the time and place alleged.

"(5) For that same fails to aver how or in what manner the defendant's negligence caused said object to fall upon or strike plaintiff.

"(6) For that the averment that the defendant's 'negligence caused said object to fall upon or strike plaintiff' is a mere conclusion of the pleader and not supported by any statement of fact.

"(7) For that the said complaint and each count thereof shows on its face that it is barred by the statute of limitations of one year.

"(8) For that same fails to state a cause of action, in this, that same shows on its face that the cause of action therein alleged is barred by the statute of limitations of one year.

"(9) For that same avers that the alleged cause of action accrued, if at all, on the 3d day of June, 1924, and same shows that this suit was filed in said court on the 17th day of June, 1925, and it is therefore barred by the statute of limitations of one year."

Plaintiff propounded these questions to his witness, and the following replies were made:

"Q. Did you hear anybody connected with Alabama Power Company say that they wanted to see it operate under a load? A. Yes; we tried out the motor first after they completed installing the meter.

"Q. Who connected with Alabama Power Company said anything, if anything was said by them, about trying it out under a load? A. Yes; when we started the motor off there was one of the men said, 'Put on the belt and try it with a load,' and I told him, 'No; I do not want to try it with a load, that I did not think the pump was ready to run.' "

The action of the court in overruling defendant's motions to exclude the answers is made the basis of assignments 5 and 7. The following question was propounded to, and the following answer was made by this witness:

"Q. I believe you stated that you had seen Mr. Johnson there before the accident performing the duties in control of the plant of the Alabama Power Company at Calera? A. Yes, sir."

The court overruled defendant's objection to the question and motion to exclude the answer, and these rulings are the subject of assignments 8 and 9.

The following occurred on the examination of this witness by plaintiff:

"Q. What work was Mr. Johnson doing, what control, if any, was he doing there? A. All I know is he was just assisting in the company's work, and that is all I know.

"Q. Who, if anybody, was giving orders and superintending the work up to that time that Mr. Shaw was hurt? A. Well, Mr. Johnson." The overruling of objections to these questions and of motions to exclude the answers is made the basis of assignments 20 to 23.

On cross-examination of defendant's witness Wade, the following occurred:

"Q. Don't you know the very craziest people that are in the asylums will frequently talk sensible for a little while and the characteristic is they fly off? A. I take a man when he is talking sensible to be sensible, when he is talking unreasonable to be foolish.

"Q. If a man cannot control his mind but for a few minutes and flies off and nearly every time you talk to him, when you talk to him nearly every day, you say that kind of a mind is sound? A. Well, as I say, I don't think Mr. Shaw's mind was sound for at least two weeks after he got home."

The overruling of objections to these questions and of motions to exclude the answers is made the basis of assignments 26 to 29.

On cross-examination, defendant's witness Sherer testified: "The Alabama Power Company employés had something to do with the meter and with the lines or wires into the meter, and with starting the meter to see whether it would operate. We started it to see whether it would operate. We were not playing with it. We were all working for the Alabama Power Company when we started that machinery." Thereupon the plaintiff asked this question, defendant's objection to which was overruled: "You were doing it for the purpose of seeing how it would work?" The witness answered: "Yes; how the meter would work." Motion to exclude this answer was overruled, and these rulings are made the basis of assignments 30 and 31.

These charges made the basis of assignments 42, 43, 45, 46 and 47, were refused to defendant:

"(5) I charge you, gentlemen of the jury, that the defendant is not responsible for the alleged act of the said Johnson in directing that the belt be placed in the pulley.

"(6) I charge you, gentlemen of the jury, that, if you believe the evidence in this case the said Johnson was not engaged in the line and scope of his employment in directing that the belt be placed on the pulley."

"(8) I charge you, gentlemen of the jury, that, at the time the plaintiff received his alleged injuries, the defendant had not delegated to the said Johnson any authority with reference to the installation of C.W. Wade's electrical appliances."

"(13) The court charges the jury that there was no duty on the agents or servants of defendant to inspect the shaft of C.W. Wade prior to plaintiff's injury.

"(14) The court charges the jury that there was no duty on the defendant through its servants or agents to inspect either the pulley which burst and injured plaintiff or to inspect the shaft on which said pulley was located"

Leeper, Wallace & Saxon, of Columbiana, and Martin, Thompson, Foster & Turner, of Birmingham, for appellant.

Harsh & Harsh, of Birmingham, and L.H. Ellis, of Columbiana, for appellee.

GARDNER J.

Plaintiff in this action, appellee here, was, at the time of his injury, an employé of one C.W. Wade as combination machinist and carpenter, preparing for the operation of two pumps by electricity in erecting a line shaft in the room with the pumps. The shaft had a pulley from which a belt ran to the pulley on the electric motor, and there were two other pulleys on the line shaft from which belts ran to the pulley on each of the pumps. There was a useless wooden pulley on the shaft which plaintiff had been instructed by Wade to move, and which he insists he intended to move just before the completion of his work in this connection. The equipment upon which plaintiff was working, the pumps, electric motor, line shaft, and wiring between the meter and motor were all owned by Wade. The meter was attached to the wall of the room some six or eight feet from the motor; the line shaft was on a frame and had been in use about four years, and appellee was familiar therewith.

Some of the employés of defendant, Alabama Power Company, were present at the time of plaintiff's injury, installing a meter for said company, and awaiting completion of plaintiff's work to test the same. Among those present...