Louisville & N.R. Co. v. Wilson

• Decision Date: 08 June 1909
• Citation: 162 Ala. 588,50 So. 188
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. WILSON.

50 So. 188

162 Ala. 588

LOUISVILLE & N. R. CO. v. WILSON.

Supreme Court of Alabama

June 8, 1909

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

Action by William H. Wilson, pro ami, against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Denson McClellan, and Mayfield, JJ., dissenting in part.

The following charge was given at the instance of the plaintiff "(3) If the jury find for the plaintiff, no matter on which count they may base their verdict, it will be their duty to award such sum as damages as in their sound discretion and judgment will compensate plaintiff pecuniarily for that part of the injuries and damages, claimed in the complaint, if any, which the jury may be reasonably satisfied, from the evidence, plaintiff suffered as a proximate consequence of the wrong complained of."

Error is assigned on the following portions of the court's oral charge: "Now, under the law, it was the duty of the defendant, if the plaintiff was an inexperienced boy in the business or work that defendant was putting him to, or of some person acting for it, exercising superintendence, or who had authority to do so, to instruct the plaintiff of any danger in the running of that machine, if it was dangerous; and that is a question for you to determine."

In response to a request for counsel to make suggestions as to his charge, counsel for appellee stated to the court: "I suggest right there, if an inexperienced man takes the unsafe way, by reason of not being instructed, or not knowing of the defects which render it unsafe, he would not assume the risk." To which the court said, by way of reply: "Yes."

Tillman, Grubb, Bradley & Morrow, for appellant.

Bowman, Harsh & Beddow, for appellee.

DENSON J.

The plaintiff, a minor, was an employé of the defendant. On the 10th day of February, 1905, while engaged as such employé in operating a bolt-cutting machine in defendant's shops in Birmingham, plaintiff's clothing was caught in or by said machine or the appliances connected therewith, resulting in an injury to his arm so serious as to necessitate its amputation. The second count of the complaint is framed with reference to subdivision 2 of the employer's liability statute. Section 1749 of the Code of 1896. The count ascribes plaintiff's injury to the negligence of the defendant's superintendent (one Madden), who, it is alleged, had superintendence over plaintiff, in that he "negligently failed to properly and sufficiently warn or instruct plaintiff of the danger to him in or about working at or with said machine, though, by reason of the youth and inexperience of plaintiff, it was dangerous for him to work at or with said machine without proper and sufficient warning or instruction as to the danger thereof, and though plaintiff in said service or employment was working at or with said machine." Objection was taken to this count in the court below by demurrer for that it fails to aver that Madden knew of plaintiff's youth and inexperience. The court overruled the demurrer, and one of the grounds in the assignment of errors challenges this ruling of the court. So far as we are advised, the precise question now presented for determination has never been before this court for decision; and its solution is not free from difficulty.

In the case of Alabama Mineral Railroad Co. v. Marcus, 115 Ala. 389, 22 So. 135, one of the counts upon which the cause was tried charged negligence upon the defendant's superintendent in running and operating a hand car at "so great, dangerous and negligent rate of speed that * * * plaintiff, who was a minor nineteen years of age and had had only five days' experience as a section hand, all of which was known to said foreman (superintendent), fell from said hand car," etc. No question of procedure arose for discussion or consideration on that appeal; and we have quoted from the complaint only to show that knowledge on the part of the defendant of plaintiff's inexperience was averred. The discussion of the case on that appeal related to the oral charge of the court excepted to by the defendant and to two written charges given at plaintiff's request, one of which (the eighth) was in this language: "The court charges the jury that the care to be observed by an employer which would be ordinary care when applied to persons of mature judgment and discretion might be gross negligence toward minors." Justice McClellan, who wrote the OPINION in that case, said: "A minor upon entering contractually upon a given service assumes the risks thereof as fully as does an adult; and the mere fact of minority does not of and in itself necessarily impose upon the master any other or greater degree of care in respect of the minor than would be upon him had the servant attained full age. It is the immaturity of mental and physical faculties and capacity which is incident to some minors, but not all, but not the mere fact of minority, which the master must have special regard for; and, where in a given instance of minority this immaturity is wanting, the minor stands upon the plane of adults. On this view charges 8 and 11 given for plaintiff * * * were faulty." On the remandment of the cause for new trial in the court below the plaintiff amended his complaint by adding counts 7, 8, 9, and 10. The cause came here again (128 Ala. 355, 30 So. 679), and Justice Dowdell (delivering the opinion of the court), touching the counts added by amendment, then said: "The seventh, eighth, ninth, and tenth counts have been added to the complaint since the cause was here on a former appeal, and manifestly for the purpose of meeting what was then said by this court upon the question of plaintiff's minority. Each of these counts avers the plaintiff's minority at the time of the employment and of the injury sustained, and that he was immature and undeveloped mentally and physically, and was without experience in working on a railroad, or in running or propelling a hand car, and that these facts were well known to said Holmes, the section foreman or boss, who had the superintendence or control of the work in which plaintiff was employed, and of the running of the hand car or lever car on which plaintiff was riding at the time of his injury, and while in the regular performance of his (plaintiff's) service under said employment. It is also averred in the seventh count that the work in which plaintiff was engaged under said employment was a dangerous one, and one in which he had no experience, and that defendant negligently failed during the time of said employment or at any time to give plaintiff any warning as to the dangers attendant upon the operating said hand car, or instruction or explanation as to the safest way of riding and propelling the same. * * * Under these averments of the plaintiff's minority, inexperience, physical and mental immaturity, all of which being known to defendant's superintendent or section foreman, it was clearly the duty of the defendant to have warned the plaintiff of the perils of the employment, and to have instructed him as to the safest mode of riding upon and propelling said car while in the performance of his duties." We have quoted thus freely from the two reports of the case because the appellant cites and relies on the case as reported in 128 Alabama as authority supporting its contention that the count is bad for not averring knowledge on the part of the defendant's superintendent of plaintiff's inexperience, and because appellee's counsel hark back to the first report of the case to show that the question of pleading was not involved in the case on either appeal. We think it is true that the question was not raised on the pleadings--for the reason, among others, that the averment which the defendant contends should be in the complaint here considered was in the complaints in the cases cited. And yet it would seem that the case reported in 128 Alabama--inferentially at least--supports the defendant's contention. Whether so or not this case as well as that reported in 115 Alabama is valuable as showing that mere minority alone does not fix upon the defendant the absolute duty of warning or instructing as to danger. We remark that perhaps the reason why the question as one of pleading has never been decided by this court is the fact that averment of knowledge on the part of the defendant has hitherto always been embraced in the causes of this character which have come before this court for determination.

In all cases touching this point found by the writer the complaint averred knowledge on the part of the master or of the person representing him. We cite many of them: Worthington v Geforth, 124 Ala. 656, 26 So. 531; King v. Woodstock, 143 Ala. 632, 42 So. 27; Moss v. Mosely, 148 Ala. 168, 41 So. 1012; Reaves v. Anniston Knitting Mills (Ala.) 45 So. 702; Brammer v. Pettyjohn, 45 So. 646. The acute question to be determined, then, is whether lack of averment of knowledge on the part of the master in this instance renders the complaint defective in its statement in respect to the duty with which it is contended defendant was chargeable--the duty to warn or instruct. We have seen from our decisions adverted to that it is the immaturity of mental and physical faculties and capacity attributable to some minors, but not to all, and not the mere fact of minority, for which the master must have special regard. And Justice McClellan, concluding the opinion on this subject in the case supra, reported in 115 Alabama, says: "Where in a given instance of minority this immaturity is wanting, the minor stands upon the plane of adults." Decatur Car Wheel Co. v. Terry, 148 Ala. 674, 41 So. 839; Levey v. Bigelow, 6 Ind. App. 677, 696, 34...