Citizens' Light, Heat & Power Co. v. Kendrick

• Decision Date: 17 December 1912
• Citation: 60 So. 526,6 Ala.App. 423
• Parties: CITIZENS' LIGHT, HEAT & POWER CO. v. KENDRICK.
• Court: Alabama Court of Appeals

60 So. 526

6 Ala.App. 423

CITIZENS' LIGHT, HEAT & POWER CO. v. KENDRICK.

Court of Appeals of Alabama

December 17, 1912

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by J. C. Kendrick against the Citizens' Light, Heat &amp Power Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

The allegations of the complaint and the facts in the case sufficiently appear from the opinion. The following charges were refused to defendant: (1) "If the defendant used ordinary care in the hiring of a wagon for the hauling of the poles, then the defendant could not be held liable by reason of the defect in the coupling poles of the wagon." (2) General affirmative charge. (3) "If the plaintiff's added weight on the hounds of the wagon contributed to the breaking of the coupling pole and to the falling of the plaintiff, then he cannot recover." (4) "If the plaintiff had not been directed to ride on the wagon, and was on the wagon without the consent of the defendant, then he cannot recover." (5) "The wagon in this case was not a part of the ways, works, etc., of the defendant." (6) "If you believe that Brinson & McCabe were reputable liverymen, then there was no duty on the defendant to have examined the wagon." (7) "There was no duty on the defendant to furnish a way for the plaintiff to ride to and from the pole pile, and if, on his own motion, he got on the wagon to ride when it was not provided for that purpose, he cannot recover." (8) "If the jury believe from the evidence that plaintiff was so riding on the wagon at the time of the breaking of the coupling pole as to add to the strain downward on said pole, and thereby assisted to cause said pole to break, and knowing that another man was also sitting in such way as to assist in causing said break, and could have avoided his injury by moving to another part of said wagon, plaintiff cannot recover."

Ball &amp Samford, of Montgomery, for appellant.

Hill, Hill, Whiting & Stern, of Montgomery, for appellee.

WALKER, P.J.

This was an action by the appellee to recover damages for personal injuries alleged to have been received by him in a fall from a wagon upon which he was riding in the performance of his duty as an employé of the appellant. The counts of the complaint upon which the case went to the jury respectively attributed the injuries complained of to the negligence of one Mullican, an employé of the defendant, to whom superintendence over the plaintiff was intrusted, whilst in the exercise of such superintendence; to the defendant's negligence in furnishing a wagon for use in the work to which plaintiff was assigned which was not safe or suitable for the purpose, in that the coupling pin was defective and unsafe by reason whereof it broke, and caused plaintiff to fall and receive the injuries complained of, and to its negligence in failing to keep said wagon in repair. Demurrers to these counts of the complaint were overruled.

The only count as to which the argument of the counsel for the appellant seeks to point out any specific fault is the second one, the one first above referred to. The defect in that count which is suggested in the argument is that it fails to aver that the injury was the proximate consequence of the negligence of Mullican, the superintendent. It is a sufficient answer to this suggestion that the objection stated was not specified in either of the grounds of demurrer assigned against that count. Besides, it seems that the count was sufficient in the respect referred to, as it plainly averred that the injuries were caused by reason of the negligence of Mullican whilst in the exercise of the superintendence intrusted to him by the defendant. The other counts are based upon the alleged negligent failure of the defendant in the performance of its duties as an employer to use ordinary care to furnish reasonably safe instrumentalities for the performance of the duties assigned to an employé, and to use ordinary care and diligence to keep such instrumentalities in a reasonably safe condition. Sloss-Sheffield Steel & Iron Co. v. Long, 169 Ala. 337, 53 So. 910, Ann. Cas. 1912B, 564; Woodward Iron Co. v. Cook, 124 Ala. 349, 27 So. 455; 26 Cyc 1097, 1136. Counsel do not point out a defect in either of the counts rendering it subject to any ground of demurrer assigned.

There was evidence tending to prove that the plaintiff was a lineman in the employment of the defendant; that, with several other employés, he was assigned to the task of hauling large poles from a place in North Montgomery and distributing them on Perry street, in the city; that two wagons, which were hired that day by the defendant, were furnished for this work; that at the time of the injury complained of one pole had been hauled on one of the wagons, and the plaintiff and three other hands engaged in the work were returning on that wagon to the pole yard for another pole, the plaintiff sitting on the hounds of the wagon, next to the hind axle, the wagon being without its body, when the coupling pole broke at the place where the hounds meet and the coupling pin goes through, causing the plaintiff to fall and receive the injuries complained of; that the coupling pole was in a worn and defective condition at the place where it broke, the wood being decayed, and the hole for the pin having become considerably larger than it was originally; that the defect could have been discovered if it had "been examined close enough"; and that the wagon was put in use by the defendant without any inspection or examination of its condition.

The court was not in error in excluding evidence to the effect that Brinson & McCabe, from whom the wagon was hired, were reputable liverymen. Even if the defendant could have relieved itself of the duty of inspecting or examining the wagon before putting it in use by showing that it had reason to suppose that a proper inspection of it had been made by its owners, evidence merely as to the general good repute of such persons would by itself have no tendency to prove that the defendant was justified in supposing that the wagon had been properly inspected by any one who was informed of the use to which it was to be put, and was found suitable and reasonably safe for such a use of it.

In the argument of the counsel for the appellant, the action of the court in overruling objections by the defendant to questions...