Republic Iron & Steel Co. v. Smith
| Decision Date | 28 October 1920 |
| Docket Number | 6 Div. 12 |
| Citation | 86 So. 908,204 Ala. 607 |
| Parties | REPUBLIC IRON & STEEL CO. v. SMITH. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.
Action by W.D. Smith against the Republic Iron & Steel Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Where a servant was ruptured by the jerking of machinery while he was standing in a strained position, lost time from work, and had to go to a hospital for a surgical operation, held that a verdict of $2,999.99 was not excessive.
Suit by appellee against appellant to recover damages alleged to have been sustained by the plaintiff while in the employ of defendant, engaged in the operation of a hoisting apparatus or device used for hoisting the ore from defendant's mine. The cause went to the jury upon count A, to which the defendant pleaded in short by consent the general issue assumption of risk, and contributory negligence. The trial resulted in a judgment for plaintiff for the full amount sued for, which was $2,999.99, from which this appeal is prosecuted.
Upon the case being called for trial 24 citizens were called to be qualified as jurors, among whom was one Kerr. When Kerr's name was called, plaintiff's attorney stated that he expected to use Mr. Kerr as a witness in the case, and asked that he be excused. Defendant objected because he had not been subpoenaed. The objection was overruled, and defendant excepted, and Juror Kerr was excused, and another juror called to fill his place. These 24 men were qualified, and, a struck jury being demanded, each party struck 6 men. Kerr was used as a witness by plaintiff on the trial.
Count A rested for recovery upon subdivision 1 of section 3910 of the Code of 1907, for a defect in the ways, works, machinery, or plant of the defendant, which defect consisted in this, viz.:
"The device, apparatus, or appliances used in hoisting iron ore from the defendant's mine were defective."
There were demurrers to this count upon the ground that the defect is not set out, and that the same is indefinite and uncertain. The demurrers were overruled.
The evidence for the plaintiff tended to show that he had been in the employ of the defendant in the operation of this hoisting machine for some few months; that he was a steam hoisting engineer, and not an electrician; that the machine was changed from a steam hoisting machine to one run by electricity; and that the controller was on his left hand and the brake on the right. The controller was supposed to control the current and the brake to stop the drum, which is that on which the cable pulling the cars ran. When the controller was on a notch it would control it all right. The current was strong and to reduce same a salt solution was used--this solution the electrician attended to. When the 250 horse power apparatus was put in, plaintiff's boss told him to run it. The controller controlled the machine, and the apparatus was difficult to control because the current was too strong at the starting point. Plaintiff complained to the superintendent, who stated it would be remedied in a short while, and plaintiff worked with the apparatus for as long as four months after he told the superintendent it was uncontrollable, and it was never fixed. "They were making every effort to fix it during that time to entice me to stay there; they were trying to put it in controllable all the time is what enticed me to stay at an increase of salary." Plaintiff had to keep his hand on the brake to hold the machine down and keep it from jerking the trips off. It did not at any time jerk him down, but was hard to hold the brake on account of the increasing power. Plaintiff further testified that nothing broke about the brake, nor did it jerk loose. With the controller on the lowest point the amount of electricity supplied was excessive. There were notches on the brake, but if the brake was inserted in the first notch the friction applied was insufficient to properly regulate the speed of the hoisting apparatus, and if it was inserted in the second notch the friction applied to the drum was too great, and therefore it was necessary for the plaintiff in operating the machine to hold his right hand on the brake lever by main strength between the first and second notches. This was an old steam hoister electrified. It did not at this time have a master controller, but some time after the injury one was put on. As to whether or not the master controller would have remedied the trouble is a matter in dispute. At the time of the injury plaintiff was operating this hoisting device with his left hand on the controller and his right hand holding the brake, and on account of the foregoing condition of the apparatus and the power of the current, he was under some strain, and had to keep the controller on the weakest point by applying the brakes to hold the machine down to keep it from jerking the trips off. "It did not jerk me down, but the power continued, so it continued jerking the machine, the power increasing more and more, and on account of the increasing power it was hard to hold the brake," and as a result of the strain his entrails dropped down, resulting in a rupture for which he was afterwards treated by physicians and an operation had.
Defendant's evidence tended to show that the device was not defective, although the brake was hard to hold, but could be held without any trouble and without producing any strain. Further, that the plaintiff was not ruptured, but had some other trouble, not the result of injuries received.
At the conclusion of the oral charge of the court there was an agreement between counsel that the verdict may be placed in form if not in form, and judgment rendered; it being understood that the verdict might be handed to the bailiff.
Plaintiff's counsel stated to the court, but not in the hearing of the jury, that the oral charge had not been clear as to the amount of damages, and that an agreement as to the form of the verdict would not cure the error if a verdict should be rendered for more than the amount claimed; and that, unless this phase of the case was more fully explained or the agreement extended to cover it, plaintiff wanted time to prepare a written request on this point. Counsel for defendant did not offer or agree to extend the agreement with reference to the verdict, and the court immediately further charged the jury as follows:
"Gentlemen of the jury, I will say to you as a matter of precaution--advice--that the plaintiff can only recover the amount he sued for, not more than that."
The defendant reserved exception to this part of the oral charge of the court, the court stating, "That is, the verdict must not exceed the amount sued for," to which exception was reserved.
Percy, Benners & Burr, and Salem Ford, all of Birmingham, for appellant.
David J. Davis and Black & Harris, all of Birmingham, for appellee.
Although the juror Kerr had not been summoned, yet plaintiff announced that he wanted to use him as an expert witness, and he was in fact so used. The court, mindful of its duty to see that trials are impartially had (Underwood v. State, 179 Ala. 9, 60 So. 842), excused the juror from the list of those from which the jury was to be selected, and we are of the opinion this was but the exercise of a wise and prudent discretion of which the defendant cannot complain.
It is next insisted count A was subject to demurrer, in that the averment of the defect in the ways, works, or machinery of the defendant's plant is too general, and much reliance is had upon the case of T.C.I. & R.R. Co. v. Smith, 171 Ala. 251, 55 So. 170, wherein it was held that the following description was insufficient: "In that said mine entry was in a defective and unsafe condition." That case is easily distinguishable from the instant case, for, as pointed out in the opinion, the complaint disclosed that there were several mine entries. Here, it does not appear there was more than one hoisting apparatus, and we are of the opinion that this description was sufficiently definite to direct the defendant's attention to that part of its plant or machinery as to which plaintiff complains, and sufficiently meets the requirements of pleading under the authorities of Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 So. 445; West Pratt Coal Co. v. Andrews, 150 Ala. 368, 43 So. 348. See, also, Little Cahaba Coal Co. v. Gilbert, 178 Ala. 515, 59 So. 445; Standard Portland Cement Co. v. Thompson, 191 Ala. 444, 67 So. 608; Caldwell v. Watson, 183 Ala. 326, 62 So. 859. The case of Woodward Iron Co. v. Marbut, 183 Ala. 310, 62 So. 804, cited by appellant's counsel, is not here directly in point, but we have reached the conclusion that the count here in question meets the general requirements of pleading there laid down.
There are many distinguishing features between the...
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