Bice v. Steverson

• Decision Date: 21 April 1921
• Docket Number: 5 Div. 746
• Citation: 205 Ala. 576,88 So. 753
• Parties: BICE v. STEVERSON.
• Court: Alabama Supreme Court

88 So. 753

205 Ala. 576

BICE v. STEVERSON.

5 Div. 746

Supreme Court of Alabama

April 21, 1921

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

Action by Emerson Bice, by next friend, against John M. Steverson for damages for personal injuries. Judgment for defendant and plaintiff appeals. Reversed and remanded.

The question whether an employé was negligent in obeying superintendent's order, knowing the danger of so doing depends on whether the danger to be encountered was so obvious and so imminent that a person of reasonable prudence would avoid the exposure that might result from obedience.

The allegations common to all the counts of the complaint are that plaintiff was a minor, 16 years of age, and was in the service and employment of defendant, and engaged in aiding in checking lumber and loading same upon a railroad car, at Kellyton, Ala. Under the direction of one M.A. Baker, who was in the employ of the defendant, and had the superintendence of the loading and checking of the said car, and while plaintiff was so engaged, he was directed by the said Baker to go upon the car, which was on the railroad track, and which was loaded with heavy logs, and set the brakes thereon while said car was in motion, but which did not have an engine or other motive power attached to it. That, in attempting to get upon said car for the purpose of setting the brakes, as directed by said Baker, plaintiff's left foot was caught under one of the wheels or trucks of said car, and so badly mashed or crushed that it had to be amputated between the ankle and the knee.

The first count avers the negligence to be that the said injuries were proximately caused by the said negligence of the said Baker, who was in the service or employment of the defendant, and who had intrusted to him the superintendence of the loading of said lumber and of the handling of said car, whilst in the exercise of such superintendence, in negligently ordering or directing plaintiff to go upon said car and set the brakes thereon, after the said Baker had caused said car to be put in motion.

The second count avers plaintiff's immature years and want of experience in the kind and character of work which he was directed to do by the said Baker, and that he was not instructed by the defendant or by the said Baker, or by any one else, as to the manner in which said work should be done, or as to the dangers attendant upon the doing of said work, in which he was directed by the said Baker.

The third count was based upon the defects in the condition, of the ways, and works, etc., of the defendant.

Count 10 avers that his said injuries were proximately caused by reason of the willful, wanton, or intentional negligence of said Baker, superintendent, etc., in this: After the said Baker had caused said car, which was at the time loaded with heavy logs, to be set in motion on said railroad track, without any locomotive or other motive power attached thereto, with which to control said car while said car was moving along the track which it was on, and going down grade, said M.A. Baker ordered or directed plaintiff to go upon said car while the same was moving along the track, and set the brakes thereon, although the said Baker knew at the time that in order to do so plaintiff would have to go in front of said car, and climb upon same at the front end of said car, and knew that such action would be attended with great danger to the plaintiff, and knew that, unless great care was exercised by the plaintiff in his efforts to go upon said car and set the brakes thereon, the plaintiff would probably suffer great injuries; the said Baker, in utter disregard of the safety of plaintiff, and with reckless indifference to his safety, willfully, wantonly, or intentionally ordered or directed plaintiff to go upon said car and set the brakes thereon, and plaintiff's said injuries were proximately caused by said willful, wanton, or intentional action or conduct of the said Baker in so ordering plaintiff to go upon said car.

Count 11 charges as for a defect in the ways, in that there was no sufficient step or ladder on the side of the car, but requiring plaintiff to go around in front of car to get on it.

The following are the pleas referred to:

(6) For further plea and answer to the complaint, and to each count thereof the defendant says that the plaintiff was guilty of negligence which proximately contributed to his injury in this: That in attempting to go upon said car and set the brakes he negligently failed to keep himself in such position as to avoid injury by the moving car, and that he had sufficient mental capacity to avoid the same, and, by the exercise of reasonable care, could have avoided the same, and that his injury resulted from his failure to avoid the same.

(12) The plaintiff was guilty of contributory negligence which proximately contributed to the injury complained of in this: That there was a reasonably safe place and way for the plaintiff to have gone up on top of said car, to wit, the side of the said car, on the rear end of said car, notwithstanding which fact was known to the plaintiff or could have been known by the exercise of reasonable care on his part. The plaintiff negligently went around in front of said moving car, negligently attempted to get upon said car in front of same while the same was running, well knowing, at the same time, that to do so was dangerous, and as a proximate consequence thereof received the injuries complained of.

(13) The plaintiff was guilty of negligence which proximately contributed to his injury and consequent damages in this; in attempting to climb upon the top of said car, as alleged in the complaint, the plaintiff negligently caused or allowed his foot to be caught under the wheels of said moving car, causing the injuries complained of, which negligence on the part of the plaintiff proximately contributed to the injury complained of.

The following charges were given for the defendant:

(15) If you are reasonably satisfied from the evidence in this case that the plaintiff knew what he was doing in attempting to board the car, and if you are further reasonably satisfied from the evidence that he appreciated the danger in attempting to go upon the car, then your verdict should be for the defendant.

(16) If you are reasonably satisfied from the evidence in this case that it was dangerous for the plaintiff to attempt to go upon the car in the manner in which he did, yet, if you are further reasonably satisfied from

the evidence that the plaintiff

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