Jones v. Union Foundry Co.

• Citation: 55 So. 153,171 Ala. 225
• Parties: JONES v. UNION FOUNDRY CO.
• Decision Date: 11 April 1911
• Court: Supreme Court of Alabama

55 So. 153

171 Ala. 225

JONES v. UNION FOUNDRY CO.

Supreme Court of Alabama

April 11, 1911

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by A. J. Jones against the Union Foundry Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The judgment resulted in a verdict for the defendant, and the plaintiff made an application for new trial, based upon alleged error in giving certain charges for the defendant which motion was overruled.

The charges are as follows: (2) "The court charges the jury that the defendant was not an insurer of the plaintiff against risks incident to the business in which the plaintiff was engaged, and that the negligence of Will Dennis was such a risk, and one for which the defendant is not liable." (6) "The court charges the jury that the burden is on the plaintiff to reasonably satisfy the jury as to the proof of every material allegation in either the first or second count of his complaint, and if he has not discharged this burden to the reasonable satisfaction of every member of the jury, the jury cannot find the issue in favor of the plaintiff." (7) "The court charges the jury that the plaintiff, in accepting employment from the defendant assumed all the risk necessarily incident to the work in which he was engaged, and the defendant in this case was not an insurer of the absolute safety of the plaintiff." (8) "The court charges the jury that a person in accepting employment assumes the risks which are necessarily incident to the work in which he is engaged, and if you are satisfied from the evidence that he was injured by reason of no negligence on the part of the defendant, or those for whose negligence the defendant was responsible, then he cannot recover." (9) "The court charges the jury that the pouring or dropping of iron into the wet sand by Will Dennis was the act of a fellow servant, for whose negligence the defendant was not liable; and if the jury are reasonably satisfied that the act of Will Dennis in pouring the iron in the wet sand was the proximate cause of the plaintiff's injury, then the jury should find the issues in favor of the defendant."

The portion of the oral charge excepted to is as follows "So that, in addition to the averment of negligence on the part of the defendant, the burden is on the plaintiff also to sustain the other allegation that it was a custom of the employés to pour out this molten iron, at least so far as this man, Will Dennis, was concerned, or those in that part of the shop in which the plaintiff was working, those with whom he was jointly engaged there." Also the following "The burden was on the plaintiff to show that it was the custom to pour molten iron into the gangway, and that that custom was known to the defendant." Also: "Of course, if the defendant had a rule, and used reasonable care to enforce the rule, that molten iron should not be poured into the gangway, why it would not be liable for the act of one of its servants in pouring that molten iron into the gangway."

The court also refused the following charge to the plaintiff: (D) "The court charges the jury that the fact that there was a rule against pouring the drop into the pig bed would be of no value, if they further find that it was the custom of defendant's employés to violate this rule, with the knowledge and acquiescence of the defendant or its officers or foreman."

Willett & Willett, for appellant.

Knox, Acker, Dixon & Blackmon, for appellee.

SIMPSON J.

This action is by the appellant against the appellee for damages resulting from an injury to the eye of plaintiff while working as an employé of the defendant in its foundry. The gravamen of the complaint is that the roof of said foundry was defective, so that it leaked, and the sand in the gangway became wet, and that another employé, after pouring the molten iron into the flask, threw what remained in the ladle ("as was the custom which was known to defendant") on the wet sand in the gangway, causing an explosion which resulted in the injury to plaintiff's eye.

The first count is based on a defect in the ways, works, machinery, or plant (to wit, the leak in the roof), and the second claims for the failure of defendant to furnish a safe place in which to work. The assignments of error relate only to the refusal to grant a new trial, taking up in order the errors claimed in the giving and refusing of charges.

There was no error in the giving of charge 2 at the request of the defendant. It asserts a correct principle of law, and it is not evident to the court that the jury was misled thereby. This court has so often declared the law with regard to misleading charges that, even if this charge was misleading, which we do not decide, it is unnecessary to cite authorities.

There was no error in giving charge 6 at the request of the defendant. The appellant claims that the use of the disjunctive "or" renders it faulty. The absence of the "or...