Pace v. Louisville & N. R. Co.

• Decision Date: 26 February 1910
• Citation: 52 So. 52,166 Ala. 519
• Parties: PACE v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

52 So. 52

166 Ala. 519

PACE v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

February 26, 1910

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

Action by George G. Pace against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Tate &amp Walker, for appellant.

Knox Acker, Dixon & Blackmon, for appellee.

SAYRE J.

Counts 1 and 2 were framed under the first subdivision of the employer's liability act (Code 1907, § 3910) as for an injury caused by a defect in the works, ways, machinery, or plant used in the business of the defendant; the particular defect alleged in the first being the defective condition of the lubricator on the engine plaintiff was employed to run and in the second that the water valve of the lubricator on the engine was broken and unfit for use. The third counts upon the negligence of one McDowell to whom superintendence was intrusted; the fourth, upon negligence of McDowell in giving orders or directions to which plaintiff was bound to conform and did conform; the fifth, upon a breach of the master's common-law duty to exercise reasonable care in the selection of the fellow servant by whose negligence the plaintiff suffered.

Defendant's second and third pleas set up plaintiff's contributory negligence, in that, after discovering the defective condition of the lubricator, he negligently failed to shut off the steam pressure and failed to use the auxiliaries which would have prevented the injury. The fourth that, after discovering the defect, plaintiff proceeded to make an investigation of the lubricator, and negligently failed before doing so to shut off the steam pressure. The argument against the pleas is that they fail to aver that plaintiff had time or opportunity to shut off steam after discovering the defect in the lubricator. A plea must contain a succinct statement of the facts relied on in bar. The gist of the pleas is that, after discovering the defective condition of the water valve on the lubricator, plaintiff negligently failed to shut off steam. They are not intended to assert the proposition that after knowledge of the defect plaintiff had opportunity to choose between assuming the particular risk or abandoning the master's service, and chose to assume the risk, for it is inferable that he learned of the defective lubricator while operating his engine upon the road where neither his duty to his master nor to himself required that he should incontinently abandon his machine. The idea rather is that, after learning of the defect and of the danger which the continued use of the defective appliance threatened, for it was a defect within the meaning of the statute only as it threatened danger, he failed to make use of an immediately available means of averting the danger. In Tennessee, C. I. & R. R. Co. v. Burgess, 158 Ala. 519, 47 So. 1029, the plea was that "plaintiff knew of the defect in the mine of which he complains, and of the danger arising therefrom, and with such knowledge remained in said mine." In respect to this plea the court said: "The correctness of the court's ruling, sustaining the demurrer to this plea, is obvious. For aught that appears on the face of the plea, the plaintiff may have acquired the knowledge alleged only a moment before the roof fell, and not in time to save himself by even a hasty retreat." The difference between that plea and this is to be found in the allegation of this that "the plaintiff negligently failed," etc. A statement, in form a conclusion, approaches occasionally so nearly the ultimate facts as to make the effort at further analysis futile for the practical purposes of pleading. An averment of negligence, whether stated as a cause of action or as a defense, is not required to be as specific as the proof essential to support it. Further, where from the facts as they are and as they must be alleged different minds might draw different conclusions, it is the office of the pleader to draw the conclusion necessary to the maintenance of his action or defense as the case may be. This finds illustration in the case at bar. The allegation that after discovering the defect the plaintiff negligently failed to shut off steam may amount to a conclusion in some sort, but it is no more a conclusion than would have been the allegation that he failed after he had time, etc., proposed by the appellant as a sufficient and necessary alternative. It was not necessary to charge, in so many words, that a reasonable time within which to turn off steam intervened after the discovery by plaintiff of the defect, since that was necessarily embraced in the averment that after discovery he negligently failed, etc. In our judgment the pleas, as for any objection taken to them, were sufficient. In Osborne v. Alabama Steel & Wire Co., 135 Ala. 571, 33 So. 687, the plea was that the plaintiff continued in the service of the defendant after he knew or could have known of the defect by the exercise of due care. The point of the decision was that the plea was bad because it imposed on the employé the duty to use care to discover the defect; whereas, he had a right to assume, and to act upon the presumption, that the defendant had not been negligent and that there was no defect. That decision is malapropos of any question here involved.

The plaintiff when testifying as a witness was asked by his counsel to state whether or not the auxiliaries could have been used on the lubricator. In view of the special defense interposed, it was the right of plaintiff to have his testimony as to the condition of the auxiliaries go to the jury. But the question by which he sought that end was not insusceptible to unfavorable criticism. The true inquiry, of course, was as to the condition of the auxiliaries--whether they were defective, or whether any other fact stood in the way of his use of them under the circumstances then obtaining--and such fact was easily capable of statement; whereas, the question asked for a conclusion. But, however that may be, the plaintiff on examination both by his own counsel and by counsel for the defendant did testify with great distinctness that he had tried to use the auxiliaries, but had found that they were "out of fix," and would not work, and again that he could not work them. No more could have been gotten out of the witness by the question propounded than was in fact drawn out on both direct and cross examination, and so the ruling was not hurtful to plaintiff's case. Kroell v. State, 139 Ala. 1, 36 So. 1025; Central of Georgia v. Simons, 50 So. 50.

The trial court would not permit the plaintiff to ask the witness Reaves how long Fisher had been working for the defendant. It appeared that, when plaintiff went to defendant's roundhouse in Anniston to prepare for his trip, the lubricator was leaking at the water valve; that plaintiff reported this fact to McDowell, the night foreman, who thereupon directed Fisher, an employé of defendant, to repair it, which the latter undertook to do. It is supposed that these facts, in connection with the subsequent accident, and the fact which plaintiff sought to develop by this question tended to show that Fisher was incompetent, and negligence on the part of the defendant in his employment to do the work intrusted to him. In this connection, also, the plaintiff reserved an exception to a ruling of the court which denied to him the advantage of an opinion by the witness Pace (not the plaintiff) that at a time previous to plaintiff's injury he had been employed at the shops, where we presume repairs were made, and that the men employed there were not competent machinists. But the witness had deposed that he did not know Fisher, and obviously his opinion was of no probative value as to his competency, and the court properly refused to allow the record to be incumbered by it. The happening of the accident may have had a tendency to prove the incompetency of Fisher. If it had been one of a series of similar accidents, traceable to his negligence, it would certainly have had such tendency; but, standing alone, it was not effective in proof of the contention that defendant had been negligent in his employment in the beginning, or that it had been negligent in failing to acquire knowledge of his incompetency during the employment and before the accident; nor would its probative force in that direction have been aided or enhanced by the answer, which we presume the plaintiff expected, that he had been a long time in the defendant's employment, or, to state the proposition as it is stated by the counsel for appellant, that he had been in the employment of defendant at the time when the witness Pace undertook to say that the defendant's employés about the shop were generally not competent machinists. This...