Louisville & N.R. Co. v. Handley

• Decision Date: 16 November 1911
• Parties: LOUISVILLE & N. R. CO. v. HANDLEY.
• Court: Alabama Supreme Court

56 So. 539

174 Ala. 593

LOUISVILLE & N. R. CO. v. HANDLEY.

Supreme Court of Alabama

November 16, 1911

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Action by George W. Handley against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Anderson J., dissenting, and Simpson, J., dissenting in part.

The substance of the complaint is sufficiently stated in the opinion. The special pleas are as follows:

"(2) For further answer defendant says plaintiff was injured, if injured at all, by the roof of a building falling upon him under which he was working by orders of the servant of the defendant, and that he had been sent to work there, and ordered to do said work, and did so in daylight, and that the danger of said roof falling upon him while he was under said roof was an obvious danger, known to plaintiff, and that he was injured, if injured at all, as a result of said danger, while voluntarily, and with knowledge of it undertaking said work.

"(3) For further answer defendant says that plaintiff was guilty of negligence on his part, which proximately contributed to the injuries complained of, in this: That plaintiff was a carpenter in the employ of defendant, and engaged in removing a roof from a building; that all the joists holding the side of said building together had been removed, except one; that plaintiff with a bar or piece of iron got under said roof, and with said bar carelessly and negligently prized said joist loose from its fastening to the plate, and which fastening kept said roof in a safe and secure position; and plaintiff carelessly and negligently, whilst under said roof, removed and prized said joist from its fastenings, thereby allowing said roof to fall upon plaintiff, producing the injuries complained of, and at the time he prized said joist loose from its fastenings it was apparent to him that, when said fastenings were removed or released, said roof would fall from its position and come in contact with him in the position in which he was at the time.

"(4) Plaintiff was guilty of negligence, which proximately contributed to his injuries complained of, in this: That there was a safe and prudent way for the plaintiff to have removed or unfastened the joists from the rafters and the plate of the building, the removal of which caused said roof to fall, and in this way, to wit, was for the plaintiff to have removed or prized said joist loose from the outside of said roof, which said way of removing same was apparent to plaintiff, but instead thereof he attempted to unfasten or remove said joist by going under said roof, and attempting with an iron bar to prize the joist loose from its fastenings. And defendant avers that this was a dangerous way to attempt to unfasten the said joist, by going under said roof, which was liable to spread and fall upon him when said joist was released, and the danger of said roof falling was apparent to plaintiff, and a danger such as a reasonably prudent man would not have ventured upon; but, notwithstanding such apparent danger, plaintiff voluntarily went under said roof, and removed the fastening of said joist, which caused said roof to fall upon him, producing the injuries complained of. And defendant avers that the manner in which plaintiff attempted to remove said fastenings of said joist was in violation of the instruction of his foreman, McCord, whose instructions it was plaintiff's duty to obey, and who instructed plaintiff to cause said roof to fall by swinging one end of the outside joist around on the outside and from under the said roof, where plaintiff would have been in a place of safety; but he disobeyed said instructions and was injured in consequence thereof."

The following exceptions were reserved to the oral charge of the court:

(1) "If you find from the evidence that McCord was the superintendent of the work, having under his superintendence the plaintiff and the work in which plaintiff was engaged, and further find that the plaintiff was bound to conform to the orders of said McCord, and in fact did conform to said orders, and that his injuries, if he was injured, resulted from his having so conformed, and that the said McCord was negligent in the orders and directions given to plaintiff with reference to work which he had to perform, and that this negligence was the proximate cause of the injuries produced, then, under that count, the plaintiff would be entitled to recover."

(2) "But does not assume extraordinary risks caused by his employer's negligence."

(3) "And provided such risks were not extraordinary, and caused by the neglient breach of duty of his employer."

The following charges were refused to the defendant:

(20) "You can look to the evidence of the plaintiff, in connection with all the other evidence in the case, that he thought it was dangerous to remain under the roof while unfastening the last joist, to determine whether he acted in a prudent and safe manner in removing said fastenings while under said roof."

(22) "If you believe from the evidence that both the plaintiff and defendant's superintendent, McCord, were guilty of negligence in giving instructions, and the plaintiff in carrying out said instructions, your verdict should be for the defendant."

Assignment 21 is in reference to refusal to give charge 25.

Assignments 1 and 2 have reference to the question to and answer of Handley. "Q. Mr. Handley, if the roof had been nailed good, would it have fallen? A. If it had been nailed, it wouldn't have fallen."

(3) and (4) Question and answer of same witness: "Q. Could Mr. McCord have ascertained that that roof was not nailed, or that the nails were broken, if he had investigated it? A. Yes, sir; he could have told it."

(7) and (8) Question and answer to same witness: "Q. If those rafters had been nailed together up there at the top, when that ceiling joist broke, would it have fallen in, had it been nailed good at the top? A. No, sir."

(9) "Do you think Mr. Handley will ever be able to do physical labor? A. It is speculative, and while there may be some little improvement later on, it will never go to the extent of permitting him to do any great amount of manual labor. It is possible that it will remain like it is now."

George H. Parker and John C. Eyster, for appellant.

J. B. Brown, for appellee.

ANDERSON J.

This is an action by the plaintiff, an employé, for personal injuries sustained while engaged in removing certain joists connected with a roof of the defendant. Counts 1 and 3 are framed under subdivision 2 of section 3910 of the Code of 1907, and charge negligence on the part of one McCord, a person in the service of the defendant, who had superintendence intrusted to him, whilst in the exercise of said superintendence. Count 2 is framed under subdivision 3, and charges the injury as the result of the compliance with an order given by said McCord as superintendent, and to which said order it was the plaintiff's duty to conform. There was proof sufficient to carry all of said counts to the jury; hence the defendant was not entitled to the general charge as to all of said counts, or any one of them, upon the theory that there was no evidence in support of same. There was evidence from which the jury could infer that it was negligence on the part of McCord to have the joists removed in any manner before first having the decking removed from the rafters. See evidence of defendant's witness Klein, page 41 of the record. There was also evidence that the said McCord ordered the plaintiff to go under the shed and remove the remaining joist, and assured him that he could do so with safety.

This case was tried upon the general issue and special pleas 2, 3, and 4, pleas 3 and 4 being contributory negligence, and plea 2 being an assumption of risk; and it is insisted by appellant that it was entitled to the general charge, because said special pleas or some of them were proven beyond dispute. We cannot agree to the contention that said pleas were proven beyond dispute. The second plea, among other things, says: "And the danger of said roof falling upon him while under said roof was an obvious danger known to the plaintiff," etc. It was a question for the jury as to whether or not the danger of the roof's falling was known to the plaintiff. True, his evidence shows that he came out and expressed himself to McCord as fearing that the roof would fall if he pulled off the remaining joist; but it also shows that McCord assured him that the roof would not fall, "that it was nailed too good at the top." There was also proof that it could not have fallen, if nailed well at the top, even after the joist was removed.

The plaintiff did not test the roof himself to see whether or not it was securely nailed at the top, and he was not compelled to act upon his mere suspicion of danger, but had the right to rely upon the superior skill and knowledge of his superintendent, McCord, who had assured him that the roof was safe and was securely nailed at the top. Pioneer Mining & Mfg. Co. v. Smith, 150 Ala. 359, 43 So. 561, and cases there cited. It was also for the jury to determine whether or not the plaintiff carelessly and negligently prized the joist from its fastenings, under the circumstances as averred in the 3d plea. Nor did the undisputed evidence show that he went under the roof in violation of McCord's instructions, as averred in plea 4, as the plaintiff's evidence was to the effect that McCord ordered him to go under the roof, and that he was complying with, instead of disobeying, instructions.

While we are treating the case upon the issues formed under the rulings of the trial court, we do not wish to be understood as sanctioning the...