Grasselli Chemical Co. v. Davis

• Decision Date: 30 June 1909
• Citation: 52 So. 35,166 Ala. 471
• Parties: GRASSELLI CHEMICAL CO. v. DAVIS.
• Court: Alabama Supreme Court

52 So. 35

166 Ala. 471

GRASSELLI CHEMICAL CO. v. DAVIS.

Supreme Court of Alabama

June 30, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by W. O. Davis against the Grasselli Chemical Company for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The first count and the second count were drawn under subdivision 1 of the employer's liability act (Code 1907, § 3910) and counted on a defect in the ways, works, machinery, and plant, etc.; the first count alleging that the stepladder used in doing said work about which plaintiff was engaged in pursuit of his employment was old, and the steps in said ladder were insecurely and improperly fixed thereto, and on account thereof, when plaintiff stepped on said ladder, it broke or gave way, throwing him to the ground and inflicting the permanent injuries set out. The averment of the defect in the second count is that the step in said ladder was insecurely and improperly put in and not able to support the weight of plaintiff, and, when he stepped on it, it broke with him, etc.

The fifth plea was as follows: "The defendant says that the plaintiff was guilty of negligence which proximately contributed to his injury in this: Plaintiff negligently failed to discover the alleged defect in said ladder although he would have done so if he had exercised reasonable care and diligence in the performance of his duties under the said employment." The demurrers were that no facts were averred showing that plaintiff was under any duty to discover the said defects, and that it is not averred that plaintiff knew of said defect, or that he appreciated the danger arising from said defect.

The following charges were refused to the defendant: (1) "You cannot find for the plaintiff unless you are reasonably satisfied from the evidence that Johnsey was guilty of negligence either in failing to discover or in failing to repair the defect in the ladder, if you believe it was defective." (9) "There can be no recovery by the plaintiff unless the jury are reasonably satisfied that Johnsey was guilty of negligence." (2) "I charge you that the plaintiff was not entitled to recover any damages for the muscular contraction in his knee, if you believe that he had suffered from such muscular contraction." (5) General offirmative charge. (6) Affirmative charge as to the second count. (7) Affirmative charge as to the first count. (8) "I charge you that you cannot award any damages to the plaintiff for injuries to his hip joint, if you believe he has suffered such injuries."

Tillman Grubb, Bradley & Morrow and Charles E. Rice, for appellant.

Frank S. White & Sons, for appellee.

SIMPSON J.

This suit is by the appellee against the appellant, claiming damages for injury to the plaintiff as an employé of the defendant. The first assignment of error insisted on is to the overruling of the demurrer to the first count of the complaint. The gravamen of this insistence is that the ladder, described in said count, is not a part of the "plant" of the defendant. It is true that the cases from the courts of other states, cited by appellant, do hold that a ladder is a tool, and not a part of the "plant." On the other hand, there are cases in the English and other courts which hold to the contrary. We hold that, under the principles laid down by our court, the ladder is a part of the "plant." Sloss-Sheffield Steel &amp I. Co. v. Mobley, Adm'x, 139 Ala. 425, 434-437, 36 So. 181; Going v. Ala. Steel & Wire Co., 141 Ala. 537, 547, 548, 37 So. 784. Consequently there was no error in overruling the demurrer to either the first or second count of the complaint.

There was no error in overruling the objection to the question to Dr. Masterson: "Did he, or not, complain of any suffering or pain?" This related to the expressions of the plaintiff at the time he was being treated, and was not subject to the objection that it was a mere narrative of a past suffering. 3 Wigmore on Evidence, §§ 1718, 1719, pp. 2208, 2209; Birmingham Ry., L. & P. Co. v. Moore, 151 Ala. 331, 43 So. 841; Birmingham Ry., L. & P. Co. v. Enslen, 144 Ala. 349, 39 So. 74; Birmingham Union Ry. Co. v. Hale, 90 Ala. 8, 8 So. 142, 24 Am. St. Rep. 748.

The court did not err in sustaining the objection to the question to the witness Dunham as to the position of the ladder when witness went to the place, after the accident, as there was no evidence that the ladder was in the same position as when the plaintiff fell.

There was no error in permitting the hypothetical question to Dr. Pressley: "I say, suppose--you speak of fever when he was 18--that he lived to be about 40 years old, never had the slightest trouble with that limb, that it developed as well as the other limb, would not that indicate there was not likely to be any tubercular trouble there?" The objection to this question is that it does not properly hypothesize the evidence. The doctor had testified that the shortening of the limb was due to tubercular trouble, and not to fever, and there was evidence tending to show the facts hypothesized. While it is true that the jury may be misled, by allowing the opinion of experts on hypotheses not in accordance with the evidence, yet each party has the right to take the opinion of the expert on his theory of the facts. 1 Wigmore on Evidence, §§ 672, 682; Page v. State, 61 Ala. 16, 18; Birmingham Ry., L. & P. Co. v. Enslen, Adm'x, 144 Ala. 343, 344, 349, 39 So. 74; Parrish v. State, 139 Ala. 18, 43, 36 So. 1012; Rogers on Expert Testimony, § 28, p. 39.

The eighth, ninth, thirteenth, and fourteenth assignments of error are to the action of the court in sustaining objections to the questions, by defendant to the plaintiff, on cross-examination, as to whether he had not made statements, when he was examined under the statute, contradictory to what he had just testified. The only objection offered was that the writing was the best evidence. The court erred in sustaining this objection. It is always the privilege of a party on cross-examination to test the accuracy of the statements of the witness, by asking him if he has not on a particular occasion made a certain statement contradictory to his present testimony. The fact that the previous testimony was in writing does not change the rule, nor is it necessary to introduce the writing in the first instance. If the witness requests to see the writing, it would have to be shown to him; but the defendant could not introduce it for any purpose. Birmingham Ry., Light & Power Co. v. Oden, 51 So. 240.

Such evidence is for the purpose of impeaching the accuracy or credibility of a witness, and while a party who introduces deposition of the opposing party, taken on interrogatories makes him his witness and cannot impeach him (Warren v. Gabriel, 51 Ala. 236; Wilson v. Maria, 21 Ala. 359), yet he is not obliged to offer the deposition (Code 1907, §§ 4053, 4056); but merely showing the answer to the witness, for the purpose of refreshing his memory as to what he has sworn, would not be introducing it in evidence. In the case of So. Ry. Co. v. Hubbard, 116 Ala. 387, 22 So. 541, the party offered portions of the answers of the witness "for the purpose of contradicting the plaintiff's testimony on the witness stand," and the reasoning of the court, in refusing to...