Alabama Steel & Wire Co. v. Tallant

Decision Date20 January 1910
PartiesALABAMA STEEL & WIRE CO. v. TALLANT.
CourtAlabama Supreme Court

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by Mark Tallant against the Alabama Steel & Wire Company for personal injuries. Plaintiff had judgment, and defendant appeals. Affirmed.

Count A is as follows: "Plaintiff claims of the defendant, a corporation, $10,000 as damages, for that heretofore, to wit on or about the 18th day of April, 1903, he was employed in the defendant's services in Etowah county as a common laborer, and was under the ordering and direction of one Lee Wright, and whilst so in the employment and service of the defendant, acting under the orders and direction of the said Lee Wright, plaintiff was, on or about the day aforesaid, in said county, negligently injured by a locomotive crane or locomotive hoisting engine, which was then and there being used by the defendant in its work of unloading and placing material for its steel plant and chemicals then in process of erection in said county, run upon or over his right foot, so bruising and crushing his said foot that it had to be cut off, and otherwise seriously wounding and bruising him. Plaintiff says that his said injuries arose from the negligence of the said Lee Wright in negligently ordering and directing him to hold a piece of timber between said locomotive and a railroad track car, and that in complying with said order, so negligently given, plaintiff sustained the injuries above set forth, by being caught between said locomotive and car, and thrown or shoved in the way of said locomotive; and plaintiff says that said injuries resulted to him from the negligence of said Lee Wright, who was then and there in the employ or service of the defendant, and to whose orders plaintiff was bound to conform, and did conform, and that his said injuries proximately resulted from his having so conformed." The substance of the pleas are sufficiently set out in the opinion.

Assignment of error 48 is as follows: "In overruling appellant's objection to the following question to plaintiff, and in permitting him to answer: 'If, on a former occasion, when he stood on the car, and held the plank between the car and the crane for Allen, Allen did not put him on the car when he held the plank?' " (50) "What kind of a piece of timber did they use at the time you held it for Allen?" (54) "Refusing to exclude the following statement, made by the appellee: 'That the railroad track connected with the L. & N. track; that is, a spur of the L. & N.' " (55) "In overruling the following question: 'Now, I will ask what kind of a block you used?' " (60) "In overruling appellant's objection to the following question propounded to the witness Harbin: 'Mr. Harbin, while you were running the engine at the Alabama Steel & Wire Company's plant, before Lee Wright got hurt, didn't he tell you that he told Tallant to go in between the car and the train, and hold the timber at the time he was injured?' " (64) "Objection to question 2 and answer of J. N. Mitchell: 'Mr. Mitchell, was there a steel bar there to the crane?' " (65) "Question and answer to same witness: 'What is your best recollection of its being on the end of the car at this time--that steel bar?' " (66) "To the witness Allen: 'At this particular time?' " (67) "Also to the witness Allen: 'Was that the supposed way to couple these cars?' "

The following charges were refused to the defendant: (1) "The court charged the jury that, if from the evidence in the case they are reasonably satisfied that plaintiff's injury proximately resulted from the negligence of both plaintiff and Lee Wright, they must find for the defendant." (2) "The court charges the jury that, if they are reasonably satisfied from the evidence that plaintiff held the piece of timber between the crane and the car so negligently that it pinched his hand, which caused him to move, to jump, and negligently place his foot on one of the rails of said track, on which said crane was moving towards him, so that said crane ran upon his foot, thereby inflicting the said injury, then plaintiff cannot recover under either count A or F." (3) "The court charges the jury that, if they are reasonably satisfied from the evidence that plaintiff's injuries proximately resulted from the joint negligence of Lee Wright and plaintiff, they may find for the plaintiff." (4) "The court charges the jury that, if they are reasonably satisfied from the evidence that there were two ways of holding the timber between the crane and the car known to plaintiff, one a safe way and the other dangerous, and he selected the dangerous way, and was thereby injured, he cannot recover." (5) "The court charges the jury that, if the danger of going in between said car and train for the purpose of holding said piece of timber was as open and obvious to plaintiff as to Lee Wright, plaintiff cannot recover under counts A and F." (6) "The court charges the jury that, under the evidence in this case, the fact that defendant had a steel bar which is used to couple the crane and car to pull, or under some circumstances to push, cars does not alone entitle plaintiff to recover." (7) "The court charges the jury that, if the place between said crane and car was openly and obviously dangerous to a person of ordinary intelligence the plaintiff cannot recover under counts A and F and A1." (8) "The court charges the jury that, if they are reasonably satisfied from the evidence in the case that it was dangerous to go in between the car and the train and hold the piece of timber between the bumpers of them while said crane was pushing said car, and that said danger was obvious and patent to a person of ordinary intelligence, and that plaintiff went in between said car and train and held said piece of timber, and while in said position was injured as alleged in counts A and F and A1 of the complaint, the plaintiff cannot recover any of these counts." (9) General affirmative charge. (10) "The court charges the jury that, if there were two ways of holding a piece of timber between the car and crane, the one dangerous and the other safe, which were known to and appreciated by plaintiff and he selected the dangerous way, instead of the safe way he was guilty of contributory negligence, and cannot recover under counts A, F, and A1." (11) "The court charges the jury that, if they are reasonably satisfied from the evidence that the injury complained of proximately resulted from the pinching of plaintiff's hand by the piece of timber and the crane, and that said Lee Wright did not know, and by the exercise of reasonable diligence could not have known, that plaintiff's hand would be so pinched, then the plaintiff cannot recover." (12) "The court charges the jury that, if they are reasonably satisfied from the evidence that Lee Wright did not know, and by the exercise of reasonable diligence could not have known, that plaintiff's hand would be pinched by holding said piece of timber, then said Lee Wright is not negligent in ordering plaintiff to hold said piece of timber." (13) "The court charges the jury that there is no evidence in the case in support of the charge in count A1 of the complaint that defendant failed to use due care to furnish plaintiff with reasonably safe cars or locomotive or locomotive crane." (14) "The court charges the jury that, if defendant furnished a reasonably safe locomotive crane, and if they are reasonably satisfied from the evidence that it did, they must find for the defendant." (15) "The court charges the jury that the burden is on the plaintiff to satisfy the jury reasonably that Lee Wright was negligent in ordering the plaintiff to hold the piece of timber between the train and the car, and unless the jury are so satisfied that Lee Wright knew that plaintiff's hand would be pinched by holding said piece of timber, or by the exercise of reasonable diligence could have known it, then the giving of said order was not negligence."

There was judgment for the plaintiff in the sum of $6,000.

Burnett, Hood & Murphree, for appellant.

Dortch, Martin & Allen and H. T. Bailey, for appellee.

MAYFIELD J.

The court gave the general charge on counts D and E, thus leaving for consideration counts A, A1, and F.

Count A1, as well as other counts, charges negligence in failing to provide reasonably safe cars, or locomotive or locomotive crane, or appliances, or instrumentalities, with which plaintiff was required to perform his work, etc. The court, at the request of the defendant charged the jury (No. 24) that, if they were reasonably satisfied from the evidence that defendant furnished these appliances, they must find a verdict for defendant under count A1. It was, therefore, for the jury to determine. They found against defendant, which necessarily disposed of count A1 and the other counts.

The pleas to count A, on which the case was tried, were numbered from 8 to 13, inclusive--contributory negligence. The argument against count A is that it is vague, uncertain, and confused; but we are impressed that it is not subject to such criticism, and was a good count under subdivision 3, § 1749, Code 1896 (Code 1907, § 3910). It charges, pertinently, all that this subdivision requires.

The defenses are the general issue and contributory negligence on the part of the plaintiff. The ninth plea sets up that a locomotive crane was used by defendant in switching cars on railroad tracks and unloading them; that, in pushing said cars by said locomotive crane, a piece of timber three or four feet long was placed against and between the bumpers of a car and said crane, so that said crane would push the car by means of said piece of timber; that plaintiff went in between said crane and a car for the...

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