Bessemer Land & Improvement Co. v. Dubose

• Decision Date: 17 April 1900
• Citation: 28 So. 380,125 Ala. 442
• Court: Alabama Supreme Court
• Parties: BESSEMER LAND & IMPROVEMENT CO. v. DUBOSE.

28 So. 380

125 Ala. 442

BESSEMER LAND & IMPROVEMENT CO. v. DUBOSE.

Supreme Court of Alabama

April 17, 1900

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by John M. Dubose against the Bessemer Land & Improvement Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The complaint contained 8 counts. The first and second counts of the complaint were as follows: "(1) Plaintiff claims of defendant five thousand dollars as damages, for that heretofore, to wit, within one year before the filing of this suit, defendant was running and operating a certain mine at or near Belle Ellen, Alabama, and in or about said business used a certain mule; that said mule was of a vicious disposition, being disposed to kick its driver; that at said time plaintiff was in the service or employment of defendant and while engaged in or about the said service or employment of defendant, as driver of said mule, plaintiff was kicked by said mule, and, as a proximate consequence thereof, two of plaintiff's teeth were knocked out, and plaintiff was cut, bruised, and mangled about the nose, face, and head, and plaintiff was made sore and sick, and suffered great mental and physical pain, and his physical health and stamina were greatly impaired, and a persistent discharge from his head and throat was caused, and plaintiff was scarred and disfigured, and lost much time from his business, and was rendered permanently less able to work and earn money, and plaintiff was put to great expense and trouble in his efforts to heal and cure his said wounds, injuries, and sickness, for medical attention, medicine, care, and nursing. Plaintiff alleges that the said disposition of the said mule was well known to defendant, and defendant, while well knowing the said vicious disposition of said mule, wrongfully furnished said mule to plaintiff, to be driven by him. Plaintiff was kicked and suffered the injuries and damage as aforesaid by reason and as a proximate consequence of the said wrong of defendant. (2) Plaintiff refers to and adopts all the words and figures of the first count, from the beginning thereof to and including the words, 'care and nursing,' where they first occur together in said count, and plaintiff further avers that defendant well knew the said vicious disposition of said mule, and, notwithstanding said knowledge, wrongfully failed to warn or inform plaintiff of said vicious disposition, and plaintiff was kicked as aforesaid, and suffered said injuries and damage, as a proximate consequence of said wrong." The third count relies upon the alleged negligence of defendant's driver boss, in wrongfully causing plaintiff to be engaged in driving said vicious mule. The fourth count relied upon the failure of the driver boss to warn or notify plaintiff of the vicious disposition of said mule. The fifth count relies upon the negligence of the driver boss in ordering or directing plaintiff to drive said mule, without notifying or warning plaintiff of said vicious disposition of said mule. The sixth count relies upon the negligence of the defendant's bank boss, one Nash. The seventh and eighth counts seek to charge defendant's driver boss with willfulness or wantonness. There were demurrers interposed to the several counts of the complaint. Defendant filed a plea of the general issue, and a plea relying upon the contributory negligence of the plaintiff in handling the mule in a careless and negligent manner, and a plea charging that plaintiff, knowing the character of the mule, remained in the service, without any reasonable expectation of being furnished with another mule. Plaintiff demurred to defendant's second and third plea in so far as they purported to answer the seventh and eighth counts of plaintiff's complaint, on the ground that said counts averred recklessness and wantonness or intentional wrong, to which plaintiff's alleged contributory negligence was no answer. The judgment entry as to the rulings of the trial court upon the demurrer was as follows "And defendant's demurrer refiled to plaintiff's complaint as amended is by the court heard, considered, and overruled. Defendant is allowed by the court to file pleas to whole complaint as amended,-Nos. 1, 2, and 3, and additional plea No. 4. Plaintiff's demurrer to defendant's second and third pleas, so far as same purport to answer seventh and eighth counts, is by the court heard, considered and sustained." The evidence showed that on the day the plaintiff was injured he was employed by the defendant as a driver in its coal mine; that he was employed in the morning and was injured in the evening of the same day; that after his employment he was put to work driving a mule in the mines of the defendant, for the purpose of drawing tram cars into and out of the mines; that he was kicked by the mule in the face, and his face and his lip were cut, and two of his teeth were knocked out. The testimony for the plaintiff tended to show that when he went to work for the defendant he asked one Hudgins, who was the boss driver, and under whose immediate superintendence he worked, whether or not the mule which he was to drive was a kicking mule, and that to this question the boss driver replied that he was not. The testimony for the defendant tended to show that when the plaintiff applied for work the boss driver told him that he could give him work, but that he had only one mule, and that he was a rough and kicking mule, and that, upon his assigning him to work on the morning of the injury, he told the plaintiff that, if he did not watch out, the mule would kick him. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. Upon the introduction of all the evidence, the defendant r...