Reynolds v. Woodward Iron Co.

• Decision Date: 15 February 1917
• Docket Number: 6 Div. 357
• Citation: 74 So. 360,199 Ala. 231
• Parties: REYNOLDS v. WOODWARD IRON CO.
• Court: Alabama Supreme Court

74 So. 360

199 Ala. 231

REYNOLDS v. WOODWARD IRON CO.

6 Div. 357

Supreme Court of Alabama

February 15, 1917

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by Minnie Reynolds, as administratrix, against the Woodward Iron Company, for damages for the death of her intestate. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Mayfield and Sayre, JJ., dissenting.

The facts, as well as some of the written charges refused to defendant, sufficiently appear. The following charges given to defendant need to be set out:

(10) If you are reasonably satisfied from the evidence that deceased knew of the presence of the trolley wire at the place where he was working, and knew that said trolley wire was carrying a current of electricity, and that if he touched the same, he was apt or liable to be injured or killed, and that nevertheless plaintiff's intestate negligently allowed his head to come in contact with said wire, as a proximate result of which he received the injuries from which he died, then you cannot find for plaintiff under the third count of the complaint.

p>Page

(11) Same as 10, except that it concludes: "Then your verdict should be for defendant."

(13) If you believe from the evidence that said trolley wire and the fact that it was carrying a current of electricity were open to ordinary observation, and that plaintiff's intestate knew of the location of said wire and the fact that it was carrying electricity, and that plaintiff's intestate further knew that if he came in contact with or touched said wire, he was apt or liable to be injured or killed, and that nevertheless plaintiff's intestate negligently did touch said wire, as a proximate consequence of which he received the injuries from which he died, then your verdict must be for defendant.

McQueen & Ellis and Allen, Bell & Sadler, all of Birmingham, for appellant.

Cabaniss & Bowie, of Birmingham, for appellee.

THOMAS J.

Plaintiff's intestate was employed in the coal mines of the defendant company, and while so engaged met his death by coming in contact with a trolley wire, which transmitted electric current to propel the tram cars, conveying coal and timbers between the various passages in the mine and the surface. Count 1 of the complaint as amended was for failure to furnish plaintiff's intestate a reasonably safe place to work, and the second and third counts were, respectively under the first and second subdivisions of the Employers' Liability Act (Code 1907, § 3910). The defendant replied in short by consent the "general issue, with leave to give in evidence any matter that might be specially pleaded, and with like leave to the plaintiff to give in evidence any matter that might be specially replied." There was judgment for the defendant.

The evidence of plaintiff showed that the room in which deceased John Reynolds, worked (room No. 12), was at the tenth right heading; that a tram track, over which defendant operated its cars in said business, was laid along this heading from the surface of the earth to and beyond said room; that by means of a switch situated in the heading, a car could pass along the main line into the room; that by "slewing" the front end of the car over to the right and the rear end of the car to the left, just above the switch, the flange on the front wheel would be made to catch on the track leading into room 12, and thus guide the car therein; that over the left-hand rail of the tram track (facing down the mine), and 4 feet 7 1/2 inches above the rail, and about 6 inches to the left of that rail, was the trolley wire, on which moved the trolley pole of the motor by which the car was operated; that this wire carried 250 volts of electricity, alternating current, and that there were no guards over it. Plaintiff's evidence tended to show that the usual and customary way to "slew" a car into the room was for one man to stand to the front, on the left, of the car, and push the front to the right, and another man to stand to the rear, on the right, and push the rear end to the left. The evidence for the defendant tended to show that the usual and ordinary way to get the car into the plaintiff's intestate's room was to stand immediately in front of the car and slew it, and then come around the right of the car, to the rear, to do the pushing. Defendant's evidence further tended to show that the usual, customary, and safe way, after leaving the front of the car, was to go on the opposite side (of the car) from the side on which the trolley wire was located (the side furthest from the wire); that plaintiff's intestate did not attempt to go by this way, but went by the side on which was located the trolley wire. On the occasion of the injury, deceased and Hawkins were working in room No. 12; they were needing timbers for props, which timbers had been loaded on a tram car, and the car brought and stopped, as required, above said switch leading into their room. It was then the duty of deceased and Hawkins to slew the car and push it into their room. Plaintiff's account of the conduct of deceased immediately before, and when injured, was that:

"Deceased went to the immediate front of the car, and John Hawkins had hold of the right-hand rear bumper, and in such positions they slewed the car in position to be pushed into room No. 12, and to assist in the pushing of the car deceased quit his position at the front of the car and walked around the left of the car on the side where the trolley wire was, and after he had about reached the left rear bumper *** and was crossing under the trolley wire, his head came in contact with the trolley wire," and he was killed.

Defendant's version of how the injury occurred was that after leaving the front end of the car, deceased went on the wrong side of the car, thereby having to pass in close proximity to the trolley wire; that just as he passed under the wire, after he had reached the read end of the car, he raised his head and struck the wire, and was killed; that some hours before intestate was killed "he had drunk some whisky, which he had carried into the mine with him, and felt a little happier than usual, but continued his work in the regular way." The evidence was in conflict as to whether the mine inspector had called the attention of the defendant's mine superintendent to the fact that the wire was dangerous in its then condition. It is without dispute, however, that at least two coal mining companies in the Birmingham district had provided shields for trolley wires situated as was the one complained of, though there were many well-conducted coal mines operated in that district that had and maintained wires "in the same manner and under the same conditions as the wire" that caused deceased's death; that is to say, without guards over or along the trolley wire to prevent contact therewith. There was no evidence that deceased informed defendant of the condition of said trolley wire. But the evidence showed that the defendant knew of its condition, having installed the wire some weeks previously, and that it was in the same condition when deceased was killed that it was in when installed. The evidence further showed that it was not the duty of the deceased to repair or remedy any defective condition of the trolley wire, and that he did not cause the condition in which the wire was installed, or in which it was maintained at the time of his death. The location of the wire was open to ordinary observation; and the fact that it carried a current of electricity, and that any one who touched the wire would receive an electric shock and be injured, was generally known and understood by the men working in the mine. The several charges given at defendant's request are assigned as error. Under the evidence the question of liability vel non was properly submitted to the jury.

While the master is not required to use the best possible appliances in the conduct of his business, and he may show that the appliances adopted and used by him are such as are adopted and used by many prudent persons engaged in the same business under like circumstances, "yet this fact does not necessarily exempt the employer from liability. Prudent persons may do imprudent things and may fail to use proper appliances." Prattville Cotton Mills Co. v. McKinney, 178 Ala. 554, 568, 59 So. 498, 502; Davis v. Kornman, 141 Ala. 479, 37 So. 789; L. & N.R.R. Co. v. Allen's Adm'r, 78 Ala. 494; 6 Mayf.Dig. 585; Hough v. Railroad, 100 U.S. 213, 25 L.Ed. 612; Wabash R.R. Co. v. McDaniels, 107 U.S. 459, 2 Sup.Ct. 932, 27 L.Ed. 605. In the Allen Case, supra, the court said 78 Ala. 503:

"We conceive the correct and just rule to be that a railroad company's duty to its employés does not require it to adopt every new invention or appliance useful in its business, although it may serve to diminish risks to life, limb, or property, incident to its service. It is sufficient fulfillment of duty to adopt such as are ordinarily in use, by prudently conducted roads engaged in like business, and surrounded by like circumstances."

Likewise in Richmond & Danville Railroad Co. v. Bivins, 103 Ala. 147, 15 So. 515, it was declared that:

"It is regarded as a sufficient fulfillment of the company's duty, to adopt such [machinery] as is in ordinary use by prudently conducted roads, engaged in like business and surrounded by like circumstances." Wilson v. L. & N.R.R. Co., 85 Ala. 272, 4 So. 701; L. & N.R.R. Co. v. Jones, 83 Ala. 382, 3 So. 902; Ga. Pac. R.R. Co. v. Propst, 83 Ala. 518, 3 So. 764; R. & D.R.R. Co. v. Jones, 92 Ala. 225, 9 So. 276; L. & N.R.R. Co. v. Hall, 87 Ala. 719, 6 So. 277, 4 L.R.A. 710, 13 Am.St.Rep. 84; A. G.S.R.R. Co. v. Arnold, 84 Ala. 171, 4 So. 359, 5 Am.St.Rep. 354.

Of the rule, thus early announced...