Jefferson v. Republic Iron & Steel Co.

Decision Date11 May 1922
Docket Number6 Div. 537.
PartiesJEFFERSON v. REPUBLIC IRON & STEEL CO.
CourtAlabama Supreme Court

Rehearing Denied June 30, 1922.

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action by John Jefferson against the Republic Iron & Steel Company for damages for personal injuries. From a judgment for defendant plaintiff appeals. Affirmed.

Pinkney Scott, of Bessemer, for appellant.

Percy Benners & Burr, of Birmingham, and Goodwyn & Ross, of Bessemer, for appellee.

THOMAS J.

The suit was for personal injury suffered by explosion of dynamite in an ore mine, where plaintiff was working.

The issues of fact, submitted to the jury under counts 1 and 3 and the plea of "not guilty," resulted in a verdict for defendant.

Under the first count it is immaterial whether or not plaintiff sues as employé or independent contractor; he cannot recover. Said count charged that it was "the duty of the defendant to furnish the plaintiff *** powder or dynamite which duty it did undertake to perform," but furnished plaintiff dynamite or powder of an inferior grade or kind which plaintiff used, and which did not discharge clear, but left a large part of the dynamite or powder in the drill hole unexploded and as a proximate consequence thereof was exploded in the operation of his work, injuring him. Of this issue of fact plaintiff testified:

"Up to the time I got hurt I had been handling dynamite for about 11 years, and I was familiar with it, and knew it was dangerous, and I had handled it as a miner in my mining work. The dynamite is always marked dangerous, and the percentage is marked on it; whatever it is, some of it is 40, and some 50 and some 60, marked on the sticks, and the one we used had a lot of white stuff around it, kind of like wax. There was no way to determine by an inspection of it, without tearing it up, whether it was defective or not."

This evidence showed there was no way of determining whether the dynamite or powder furnished by defendant to plaintiff was defective without destruction of the same, and there was no evidence that defendant had knowledge that the dynamite or powder furnished to its employés immediately preceding the time of said explosion was defective in the respects indicated, or that defendant failed to use reasonable diligence to discover latent defects in the dynamite or powder purchased by it and furnished to employés. Such is the effect of the evidence, notwithstanding plaintiff's testimony that during the "last work" he had done for the company some of the dynamite would not explode. He did not testify when this last work was done, or that he reported the fact of defect in powder or dynamite to defendant. Plaintiff was not entitled to recover under the evidence under the first count. Hence no prejudicial error intervened in the ruling on demurrer to special pleas as answer to said count.

This court cannot know, as did the trial court, the locus in quo as described by the witness by reference to the "blueprint" which is recited in the bill of exceptions to have been introduced in evidence and "attached hereto as a part of the evidence in this case." The same is omitted from the page of the record so indicated and left blank for such purpose. Nor is that omitted evidence otherwise inserted in the bill of exceptions. Such omission in the bill of exceptions, where the suit is for failure to furnish a safe place of employés to labor, under the several answers of the witnesses, involves a contradiction in the bill of exceptions reciting, "This was all the evidence in this case." Fayet v. St. L. & S. F., 203 Ala. 3, 81 So. 671; L. & N. v. Jenkins, 196 Ala. 136, 140, 72 So. 68; A. T. R. Co. v. Benns, 189 Ala. 590, 66 So. 589.

In the absence of such material evidence as the blueprint introduced by defendant, and to which the witness testified to explain and to illustrate his testimony, charges which involved a ruling of the trial court applying the law of the case to all the evidence purported to be set out in the bill of exceptions, must be presumed to have been properly given. Schmidt v. Mobile L. & R. Co., 204 Ala. 694, 87 So. 181; Sou. Ry. v. Wyley, 200 Ala. 14, 75 So. 326; B. R., L. & P. Co. v. Canfield, 177 Ala. 422, 59 So. 217; Montevallo Min. Co. v. Underwood, 202 Ala. 59, 79 So. 453.

It may be that detailed consideration of the several rulings on evidence, to which exceptions are reserved, is unnecessary and would subserve no good purpose. However, we see fit to say that the questions propounded to witnesses Bryant and Jefferson were leading or suggestive; the objections were general; the court's ruling will be referred to any valid ground of objection. The questions as to whether "they" often explode dynamite in rivers and in water were improper to rebut the fact that dampness in mines could not have affected the dynamite. The manner in or conditions under which explosions in water are made, the manner and length of time dynamite may be exposed to water or dampness in mines, are material inquiries that were not hypothesized in the question calling for opinion evidence of the witness or expert.

The map or blueprint of the locus in quo, made by a mining engineer, was properly admitted after due predicate was laid thereon. If any part of the map was drawn pursuant to information given by another, the ground of objection or motion to exclude was not limited to the part based on hearsay. The objection was to the "blueprint" as a whole. Autrey v. State, 190 Ala. 10, 67 So. 237. Moreover, the drawing is not made a part of the bill of exceptions, and the assignment of error based thereon will not be considered. Watts v. A. B. & A., 179 Ala. 436, 60 So. 861; Nelson v. Shelby Co., 96 Ala. 515, 11 So. 695, 38 Am. St. Rep. 116; Morris v. Beall, 85 Ala. 598, 5 So. 252; McCaskey Register Co. v. Nix Drug Co., 7 Ala. App. 309, 312, 61 So. 484.

What others thought about plaintiff's injuries was immaterial to the issue. No damages being found for plaintiff, the fact of his injuries not being denied, the extent thereof was immaterial. No reversible error could be rested on this ruling. Walker v. John Smith, T., 199 Ala. 514, 74 So. 451; Hamilton v. Cranford Merc. Co., 201 Ala. 403, 407, 78 So. 401. So of the questions propounded to witness A. G. Parsons, to which objections were sustained.

The extent to which counsel may go on cross-examination is usually a question resting largely in the discretion of the court, not, however, to be abused or to amount to an undue resraint upon or denial of the right of cross-examination. And as to irrelevant matters to the issue, the extent of such cross-examination is within the sound discretion of the court, which discretion will not, generally, be reviewed unless abused. Appellant took nothing by his assignments of error numbered 18, 21, 22, and 39. Sou. Rwy. v. Brantley, 132 Ala. 655, 32 So. 300; Cox v. State, 162 Ala. 66, 50 So. 398; L. & N. v. Kay, 8 Ala. App. 562, 62 So. 1014; Johnson v. State ex rel. Jones, 16 Ala. App. 4, State (In re Johnson v. State),

199 Ala. 255, 74 So. 366; Fondren v. State, 204 Ala. 451, 86 So. 71.

The negative answer of the witness to the question allowed over plaintiff's objection, challenged in the twenty-third assignment of error, if there had been error, was without injury to plaintiff. Brown v. Johnston Bros., 135 Ala. 608, 613, 33 So. 683; Southern Cotton Oil Co. v. Harris, 175 Ala. 323, 57 So. 854; Birmingham Bottling Co. v. Morris, 193 Ala. 627, 69 So. 85.

The objection to the question to witness Hooper, "Is that grade of that dynamite there a good grade?" referring to the kind and grade of dynamite defendant furnished to its employés at the time of plaintiff's injury, was that it "called for illegal, irrelevant, and immaterial testimony." Under the issues of the case, this was merely a general objection, and presented nothing for review. Sou. Rwy. v. Jordan, 192 Ala. 528, 531, 68 So. 418; Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54. Moreover, the evidence showed that the witness' long experience, knowledge, and familiarity with the facts qualified him to answer the question. So of the question:

"I will ask you to explain to the jury the different causes of a portion of the dynamite in a fired hole not exploding."

The questions, "Is that the kind of box, or not, that the dynamite comes in?" "Of the Republic Iron & Steel Company?" called for evidence that was material to the issues presented by the third plea. So of the other and several questions tending to show the manner of wrapping and inclosure of dynamite in boxes, its vendor and the grade of the content, etc., used by defendant and furnished to its employés generally. We have examined the other assignments predicated on ruling on the introduction of witness Hooper and witness Enoch, and find no reversible error.

The witness Bryant, having testified for plaintiff, was recalled by defendant for further cross-examination, and testified:

"I have brought a suit for damages against the General Explosives Company for the furnishing of defective dynamite, and
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