Mackintosh Co. v. Wells

• Decision Date: 28 June 1928
• Docket Number: 6 Div. 893
• Parties: MACKINTOSH CO. v. WELLS.
• Court: Alabama Supreme Court

118 So. 276

218 Ala. 260

MACKINTOSH CO. v. WELLS.

6 Div. 893

Supreme Court of Alabama

June 28, 1928

Rehearing Denied Oct. 25, 1928

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages for personal injuries by Herbert L. Wells against the Mackintosh Company. From a judgment for plaintiff defendant appeals. Affirmed conditionally.

Anderson C.J., dissenting in part.

The burden of proving contributory negligence is on the defendant.

The following charges were refused to defendant:

D-10. I charge you that if you believe the evidence in this case, you cannot award plaintiff more than nominal damages for any permanent decreased earning capacity.

C-6. I charge you that you cannot award the plaintiff more than nominal damages for any loss of wages.

C-8. I charge you that you cannot award the plaintiff any damages for any loss of wages.

C-10. I charge you that you cannot award the plaintiff any damages for any loss of time from his work.

C-11. I charge you that you cannot award the plaintiff more than nominal damages for any permanent scar on his head unless you are reasonably satisfied from the evidence that said scar causes pain and suffering.

C-12. If you believe the evidence in this case, you cannot award the plaintiff more than nominal damages for loss of wages on account of the injury received.

C-13. I charge you that you cannot award any damages for permanent mental anguish or suffering unaccompanied by physical suffering.

C-14. I charge you that in the event you believe the plaintiff is entitled to recover damages in this case, you cannot award the plaintiff more than nominal damages on account of any permanent scar on his head.

3. If you believe the evidence in this case, you cannot award the plaintiff more than nominal damages on account of being rendered permanently less able to work and earn money.

6. If you believe the evidence in this case, you cannot award the plaintiff any damages for any nurses' bills paid out by plaintiff in an effort to heal and cure his said wounds.

14. If you believe the evidence in this case, you cannot award the plaintiff any damages for any loss of time from his work.

15. If you believe the evidence in this case, you cannot award the plaintiff any damages on account of any loss of wages.

J.P. Mudd and L.D. Gardner, Jr., both of Birmingham, for appellant.

Martin, Thompson, Foster & Turner, of Birmingham, for appellee.

THOMAS J.

The assignments of error are properly grouped and argued, Polytinsky v. Johnston, 211 Ala. 99, 99 So. 839; Sovereign Camp W.O.W. v. Craft, 210 Ala. 683, 99 So. 167; Moore v. First Nat. Bank of Birmingham, 211 Ala. 367, 100 So. 349, 34 A.L.R. 526, and will be so considered by this court.

The trial was had on counts 1 and 2; the wanton count was withdrawn. The negligent failure averred in the respective counts was as to a reasonably safe place to work and a reasonably safe machine for those who were required or invited to be upon or about it in the discharge of the duties of his employment or the purview of the express or implied invitation.

Plaintiff, an inspector, engaged in construction work on a street in Birmingham, was injured, and sued. He was engaged in the performance of his duty as paving inspector for the city, and being required to know the contents of the mixture that was being applied to said street, inspected the same and found it not of a proper mixture. To investigate the cause and remedy that defect, the plaintiff went to defendant's concrete mixer to have the man in charge properly regulate the contents as discharged upon the street. When plaintiff leaned over to look into the drum of said mixer, his clothing was caught by the lugs on the revolving shaft's end, causing the serious injuries of which complaint is made.

It cannot be successfully maintained that plaintiff was a bare licensee (A.G.S.R. Co. v. Cummings, 211 Ala. 381, 100 So. 553, 33 A.L.R. 439), but was an invitee (Alabama By-Products Corp. v. Crosby [Ala.Sup.] 115 So. 31). If plaintiff was rightfully at or upon the machine by express or implied invitation, under the pleading, the question presented is: Did defendant fail to exercise reasonable care in providing a reasonably safe place or machine at and with which plaintiff was to discharge his respective duties to the city on the one hand and the operating contractor on the other?

The evidence is without conflict that the paving inspector, when injured, was in the discharge of his duty as an invitee, and as to him the contractor must have exercised and employed the reasonable care skill, and means of an ordinarily prudent person so engaged--for the contemplated use and purpose of the express or implied invitation--as to avoid personal injury to such invitee. Alabama By-Products Corp. v. Crosby, supra; Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So. 73; Southern Ry. Co. v. Bates, 194 Ala. 78, 69 So. 131, L.R.A. 1916A, 510; Alabama S. & W. Co. v. Clements, 146 Ala. 259, 40 So. 971; Sloss I. & S. Co. v. Tilson, 141 Ala. 152, 37 So. 427; Bennett v. L. & N.R. Co., 102 U.S. 577, 580, 26 L.Ed. 235.

Counts 1 and 2, as last amended, contained, respectively, the averments of fact showing, among others, the relation of the party and the duty in the premises, as follows:

" 'And plaintiff avers that it was the duty of the defendant at said time and place to exercise reasonable care and skill in providing plaintiff a reasonably safe place to do his said work.' "

" 'And plaintiff avers that it was the duty of the defendant at said time and place to exercise reasonable care and skill in providing that said machine was reasonably safe for persons whose business or work required them to be at and about said machine, and plaintiff avers that defendant negligently failed to perform the said duty, and as a proximate consequence thereof plaintiff received his said injuries and damage.' "

Negligence may be charged in general terms if the facts averred show the duty owed by defendant to do or not to do the thing complained of as the proximate cause. Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473; Ala. Fuel & Iron Co. v. Ward, 194 Ala. 242, 251, 69 So. 621. The demurrers to said counts were properly overruled. The counts sufficiently averred the negligent failure of the defendant--a lack of ordinary prudence, or the exercise of reasonable care to provide plaintiff with a reasonably safe place to work, or a reasonably safe machine with which to discharge his duty to the contractor and the city, with a due regard for his own safety and within the purpose for which he was invited to be at or near said concrete mixer. Jackson v. Vaughn, 204 Ala. 544, 86 So. 469; Coosa, etc., Co. v. Crankfield, 202 Ala. 369, 80 So. 451; Munson S.S. Line v. Harrison, 200 Ala. 504, 76 So. 446; Wilson v. Gulf States S. Co., 194 Ala. 311, 316, 69 So. 921; Sloss-Sheffield S. & I. Co. v. Triplett, 177 Ala. 258, 58 So. 108; Smith v. Watkins, 172 Ala. 502, 55 So. 611. It is insisted by appellant that the inspector was not an invitee. However, the case of Doullut & Williams v. Hoffman, 204 Ala. 33, 37, 86 So. 73, contains the declaration that an independent contractor owes employee of the principal, rightfully on the premises for the purpose of inspection, the duty of ordinary care to avoid inflicting injuries; there the inspector, by reason of his duties, was upon a pile driver in operation, when injured.

We are now brought to defendant's special plea of contributory negligence. In contributory negligence, the essentials are that the party, against whom the plea is interposed, not only (1) had knowledge of the condition or failure, yet (2) appreciated the danger under the surrounding conditions and circumstances and did not (3) exercise reasonable care in the premises, but with such knowledge and appreciation put himself into the way of danger. Morgan v. M. & O.R. Co., 202 Ala. 461, 80 So. 845; L. & N.R. Co. v. Naugher, 203 Ala. 557, 560, 84 So. 262; Jones v. Ripley Stave Co., 203 Ala. 60, 82 So. 20; Labatt's Master and Servant, § 332. In McGeever v. O'Byrne, 203 Ala. 266, 269, 82 So. 508, 511, the following observation is made:

"The phrase 'assumption of risk' is, however, sometimes loosely applied to cases where there was no contractual relation between the plaintiff and the defendant, but that use of the phrase 'must be confined to cases where the plaintiff knew and appreciated the danger and voluntarily put himself in the way of it.' Warren v. Boston, etc., R. Co., 163 Mass. 488, 40 N.E. 897; Gentzkow v. Portland R. Co., 54 Or. 114, 102 P. 614, 135 Am.St.Rep. 821. So 'as the practical equivalent of the term "contributory negligence" one frequently finds in the cases the expression "assumption of risk." It is said that one who knows and appreciates a danger "assumes the risks" thereof.' 20 R.C.L. 109, § 95.

"Practically there can be no serious objection to these uses of the phrase, and 'it is often a question of little importance whether a given plea be called one of assumption of risk or a plea of contributory negligence. The more important inquiry is: Are the facts stated in the plea a defense to the cause or causes of action stated in the complaint or declaration?' King v. Woodward Iron Co., 177 Ala. 487, 500, 59 So. 264, 269."

The instant plea was that of contributory negligence, and the mere knowledge of the offending instrumentality or condition does not constitute contributory negligence; there must have been an appreciation or consciousness of the danger that may result from the act or the failure thereof causing and resulting in the injury. Dobbins v. W.U. Tel. Co., 163 Ala. 222, 50 So. 919, 136 Am.St.Rep. 69; Elyton Land Co. v. Mingea, 89 Ala. 521, 7 So. 666; City Council of Montg. v. Wright, 72 Ala. 411, ...