Gainer v. Southern Ry. Co.

• Decision Date: 02 July 1907
• Citation: 152 Ala. 186,44 So. 652
• Parties: GAINER v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

44 So. 652

152 Ala. 186

GAINER v. SOUTHERN RY. CO.

Supreme Court of Alabama

July 2, 1907

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by T. W. Gainer against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

George Huddleston, for appellant.

James Weatherly, for appellee.

DENSON J.

This is an action by an employé against his employer to recover damages on account of a personal injury suffered while engaged in the discharge of his duties as employé. The complaint contains three counts, based, respectively, on the first, second, and third subdivisions of the employer's liability statute (Code 1896, § 1749). The cause was tried on the general issue and three special pleas of contributory negligence, pleaded to all the counts. At the conclusion of the evidence the general affirmative charge with hypothesis was given at the request of the defendant.

After a careful examination and consideration of the evidence, we have been unable to find that any one of the pleas of contributory negligence finds any support therein. Indeed appellee's counsel has not argued or briefed the cause here on the theory that contributory negligence, as pleaded was proved; but his insistence, in justification of the court's ruling in giving the charge, is, first, that the evidence failed to make out a cause of action on any one of the counts; and, second, that the evidence without conflict shows that the plaintiff assumed the risk which caused his injury. There is no plea of assumption of risk, and on this account counsel for appellant insists that the defendant should be cut off from availing itself of that defense, even though it was established by the evidence; citing and relying on the case of Foley v. Pioneer, etc., Co., 40 So 273, 144 Ala. 178, as supporting the insistence. In the case cited, the court, through Dowdell, J., said that "Assumed risk, when set up as a defense, is subject-matter for a special plea. There is a well-defined distinction between assumption of risk and contributory negligence. Still both of these defenses are in confession and avoidance of the plaintiff's action, and cannot be availed of under the general issue, but must be specially pleaded." While no authority is cited in that case in support of the ruling that assumption of risk must be specially pleaded, it is supported by respectable authority, as may be seen by reference to 13 Ency. Pl. & Pr. p. 914. Notwithstanding the ruling in the Foley Case, we apprehend that if, without a plea of assumption of risk, the record shows (as it does in this case) that both parties, without objection, have tried the case to its conclusion as if issue had been joined upon such a plea, it should not be allowed to either party to insist in this court for the first time that, in reviewing the rulings of the trial court, this court should do so without regard to that issue. The plaintiff in the court below should have protected himself against the injection into the case of the defense not pleaded by objecting to the evidence offered in support of it. In each of the cases of R. & D. R. R. Co. v. Farmer, 97 Ala. 141, 12 So. 86, L. & N. R. R. Co. v. Mothershed, 97 Ala. 261, 12 So. 714, and K. C., M. & B. R. R. Co. v. Burton, 97 Ala. 240, 12 So. 88, although the plea of contributory negligence was not interposed, yet, the record showing that the parties without objection had tried the cause to its conclusion as if on issue joined on the plea of contributory negligence, this court held that in reviewing the rulings of the trial court the appellate court should do so as if such defense was specially pleaded. There is no reason that we can see for the application of a different principle in reviewing the case at bar, and we shall consider the case as if the defense of assumption of risk was specially pleaded. 1 Bailey's Per. Inj. § 948.

The plaintiff was the only witness examined on the trial of the cause, and the bill of exceptions purports to set out the whole of the evidence. It appears that the plaintiff at the time of his injury was engaged as an employé of the defendant in operating a planing machine in the defendant's planing mill in the city of Birmingham. That he was an experienced man in that business is shown without dispute, it appearing that he had been engaged in that particular business for 15 years prior to his injury, and that he had been running the machine in question for a period of two years. The motive power for the planer was furnished by an overhead line shaft from which was a "driving belt to the planer." While plaintiff was engaged in attempting to run lumber through the planer, for the purpose of dressing it, the "knives that were dressing or cutting the lumber choked down." Plaintiff testified that, "in order to loosen up right quick, as a rule, he just crossed the feed belt and jerked the lever right quick to get in motion, and while he was stooping over to cross the belt on that occasion, with his right hand on the feed lever, and crossing the belt with his left hand, the belt broke, struck his arm, and broke it and one of his fingers." The evidence is without conflict that the plaintiff put the belt on the machine about two or three months before the accident, and that he knew such belts do not last "a great while"; and the witness said, in this connection, that the belt that broke "was an old one, had been running some time, and it was worn...