Hinton & Sons v. Strahan, 6 Div. 89

• Court: Supreme Court of Alabama
• Writing for the Court: MERRILL
• Citation: 96 So.2d 426,266 Ala. 307
• Docket Number: 6 Div. 89
• Decision Date: 27 June 1957
• Parties: HINTON & SONS v. James Clyde STRAHAN.

Page 426

96 So.2d 426 266 Ala. 307 HINTON & SONS
v.
James Clyde STRAHAN. 6 Div. 89. Supreme Court of Alabama. June 27, 1957.

[266 Ala. 308]

Page 427

LeMaistre, Clement & Gewin, Perry Hubbard and H. Vann Waldrop, Tuscaloosa, for appellant.

deGraffenried, deGraffenried & deGraffenried, Tuscaloosa, for appellee.

MERRILL, Justice.

Appellant, a partnership operation a dairy, appeals from a judgment against it in the sum of $12,500. The complaint that went to the jury consisted of one count which declared upon an alleged breach of the common law duty to furnish appellee, their employee, with a reasonably safe place in which to work. The count, after alleging that plaintiff was employed by the defendant, avers that plaintiff was manually milking one of appellant's cows in one of the stalls located in appellant's barn, and that appellant negligently failed to provide plaintiff with a reasonably safe place to do and perform the work for which he was employed, and that the cow plaintiff was milking ran upon plaintiff and knocked him into a cement gutter in said barn and, that as a proximate consequence of appellant's said negligence, plaintiff received many injuries.

The appellant pleaded the general issue in short by consent, and this included the pleas of assumption of risk and contributory negligence.

Assignments of error 2 and 3 assert error in the court's refusal to give the general affirmative charge without hypothesis (2), and the same charge with hypothesis (3). Appellant contends it was entitled to these charges under the assumption of risk doctrine, because it is urged that plaintiff's injuries resulted from either an ordinary or extraordinary risk of his employment, and that he continued in the employment with full knowledge of the conditions causing his [266 Ala. 310] injury and with an appreciation of the danger therefrom.

The tendencies of the evidence most favorable to the plaintiff were that the cows were ordinarily milked by milking machines; but the one he was milking had recently freshened, and, upon instructions of one of his employers, George Hinton, Jr., the cow was being milked by hand. Plaintiff

Page 428

was sitting on a paint can, and the cow had a chain around her neck which was hooked to a chain which was fastened to a bolt in the wall of the barn. Plaintiff testified that he was furnished one helper and one milking stool, and that the helper was using the milking stool at the time of the injury. Witnesses for both plaintiff and defendant testified that at the time of the injury, prudent dairy operators in Tuscaloosa County with similar dairies provided wood or metal head stanchions for their cows which opened up, let the cow's head in and closed on her neck while she was being milked, and that these stanchions were better and safer than chains for securing a cow. On cross-examination of one of appellant's witnesses, it was adduced that it was dangerous to sit on a bucket to milk a cow, and that prudent dairy operators provided their employees with stools to sit on while milking. There was no evidence that plaintiff was familiar with the standards met by prudent dairy operators in Tuscaloosa County. His experience in dairy work was confined to this dairy where he had worked for over fifteen months prior to his injury.

We think the plea of assumption of risk on the part of appellee was properly submitted to the jury by the trial court who gave a full charge on the plea.

Likewise, we do not think the court should have granted the motion for a new trial on the ground that the verdict of the jury was contrary to the great weight and preponderance of the evidence.

Assignment of error No. 6 complains that the court erred in overruling defendant's demurrer to the complaint. The argued grounds of demurrer were that there were no facts alleged showing a causal connection between defendant's alleged negligence and plaintiff's alleged injuries. Under our system of pleading, the averment that the master negligently failed to furnish or provide a reasonably safe place to work is sufficient, and the most general allegation of default therein is permissible. Birmingham Ry., Light & Power Co. v. Buff, 201 Ala. 94, 77 So. 388; Ragland Brick Co. v. Bell, 197 Ala. 14, 72 So. 380; Citizens' Light, Heat & Power Co. v. Lee, 183 Ala. 561, 62 So. 199; Smith v. Watkins & Donelson, 172 Ala. 502, 55 So. 611; Gray Eagle Coal Co. v. Lewis, 161 Ala. 415, 49 So. 859.

Assignments of error 4 and 5 predicate error upon the court's refusal to give charges 24 and 25, the effect of these charges being that the failure of defendant to furnish milking stools could not be a basis for recovery. It is sufficient to say that the charges were properly refused as being misleading or argumentative, in that each unduly singles out and emphasizes particular facts.

Assignment of error 1 is that the trial court erred in overruling appellant's motion for a new trial. We have already considered the grounds that the verdict was contrary to the weight and preponderance of the evidence.

It is next urged that appellee's counsel made references in argument that none of the four partners has taken the stand as witnesses to deny their liability to the plaintiff. Appellant objected to these references but the objections were overruled. In this action, the trial court did not commit reversible error. In Morris v. McClellan, 154 Ala. 639, 45 So. 641, 645, the court, speaking through Dowdell, J., said:

'* * * It has always been the rule in civil actions that the failure of a party to the suit, when present at the trial, to testify as to a fact in issue, furnished legitimate ground of comment[266 Ala. 311] in argument to the jury by the opposite party. * * *'

To like effect, see Martin v. Davis, 224 Ala. 648, 141 So. 667; Wheeler Motor Co. v. Stringer, 222 Ala. 494, 133 So. 10. The issue in the instant case was whether defendant had furnished a safe place for plaintiff to work, and no member of the

Page 429

defendant partnership became a witness, and it appears that at least one of the partners, George Hinton, Jr., was present in court during the trial.

This general rule as to comment in argument on the failure of a party to testify has certain common sense qualifications. They are listed in 31 C.J.S. Evidence § 156 d, page 862. They include--where the testimony of the party is unnecessary, where he has no personal knowledge of the facts in issue, where such facts have been otherwise fully established by depositions, interrogatories or by testimony at a former proceeding, where he is unavoidably absent from the trial, where his mind is impaired or where he is incompetent as a witness. This court has recognized some of these qualifications. In McGar v. Adams, 65 Ala. 106, this court held that a party's failure to testify merely to support uncontradicted evidence, favorable to him, which his adversary introduces, did not give rise to the presumption of the imputation of withholding evidence....