Scales v. Central Iron & Coal Co.

• Decision Date: 13 April 1911
• Citation: 173 Ala. 639,55 So. 821
• Parties: SCALES v. CENTRAL IRON & COAL CO.
• Court: Alabama Supreme Court

55 So. 821

173 Ala. 639

SCALES v. CENTRAL IRON & COAL CO.

Supreme Court of Alabama

April 13, 1911

On Rehearing, May 5, 1911.

On Rehearing.

Appeal from Tuscaloosa County Court; H. B. Foster, Judge.

Action by Willis A. Scales against the Central Iron & Coal Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Simpson and Sayre, JJ., dissenting.

Brown &amp Ward, for appellant.

Jones &amp Penick, for appellee.

SIMPSON J.

This is an action by the appellant against the appellee, for personal injuries received by the plaintiff while working as a carpenter on the furnace plant of defendant.

The first assignment of error insisted on, is to the action of the court in refusing to strike defendant's pleas 3, 4 5, and 6, the contention being that said pleas were not filed within the time prescribed by the special act under which said Tuscaloosa county law and equity court was established. Acts 1896-97, p. 262. The eleventh section of said act provides that defendants shall appear and demur or plead to the complaint within 30 days after service, and authorizes judgment by default, on motion of plaintiff, at any time thereafter. The complaint was filed February 14, 1910, and served February 16, 1910, demurrer filed May 20, 1910, and said pleas were filed June 6 and 7, 1910. In the meantime no motion was made for a judgment by default. Said section of said act prescribes terms upon which pleas may be filed after judgment by default, but makes no special requirements as to terms on filing pleadings after the 30 days and before default claimed. There was no error in refusing to strike said pleas.

There was no error in sustaining the objection to the questions as to the cause of the reduction of plaintiff's wages, as the questions called for the opinion of the witness, and should have asked for facts, leaving it to the jury to determine why the wages were reduced.

The plaintiff, as a carpenter, was working under the orders of Mack Powell, to whose orders he was bound to conform and did conform. The dust box is cylindrical in shape, from 10 to 18 feet in diameter, and 20 feet or more in length, large enough for men to walk inside. The dust was transmitted from the furnace above, down into said dust box, through large pipelike passageways called "down comers," which are large enough for a man to pass through. For the purpose of relining said dust box, the carpenters had erected a scaffold therein, upon which scaffold were placed sections of ovalshaped lagging which supported the brick that were used in lining said dust box, until sufficiently dried for said lagging to be removed. No light came into said dust box except such as shone through two explosion doors in the top thereof, one being at each end of said dust box, and each large enough for a man to crawl through. There were wires for transmitting electricity, hanging through the explosion doors, upon which were placed electric lights, but there were no bulbs or electric lamps in the sockets, though there had been the day before.

While the plaintiff was in the performance of his general duties, he and his squad were ordered by said Powell to go into said dust box and tear out the scaffolding or lagging, there then being one or more electric lights furnishing sufficient light to work in said dust box. On the next morning, when plaintiff went into said dust box to continue said work, he discovered that there was no electric lamp or bulb therein, and he came out and reported the fact to said Powell, stating that he did not like to go in and work in the dark while the brick masons were working above, in the "down comer," for fear that something might fall on him; and said Powell ordered him to go back to work, stating that they could not wait for the electrician to put lights in. Plaintiff, in obedience to orders, then went back, and when he had passed one piece of lumber through the bootleg below, a piece of lumber, with an eight or ten penny nail protruding from the end thereof, fell from some point above and struck plaintiff on the head, causing the injury complained of. Plaintiff could not see said plank, nor how to protect himself therefrom, nor where it came from.

It will be observed that the only negligence complained of is the failure to renew the electric bulb. There is no evidence tending to show that if the bulb had been there, the plaintiff could have seen into the regions above him, so as to discover the falling plank in time to avoid it; no causal connection is shown between the absence of the light, and the falling of the plank, and there is no evidence tending to show whether the falling of the plank was the result of the negligence of any one; and there is no allegation or proof as to who was responsible for the falling of the plank. For aught that appears, it may have resulted from the negligence of the plaintiff and his co-workers, in constructing the scaffold. In fact, the explosion doors being closed, there was no place for the plank to fall from, except the platform that had been erected by plaintiff and his coemployés.

There was no error in the action of the court in sustaining the motion to exclude the evidence of the plaintiff, and giving the general charge in favor of the defendant. This being the case, it is unnecessary to notice exceptions to rulings on the pleadings.

The judgment of the court is affirmed.

Affirmed.

McCLELLAN, MAYFIELD, and SOMERVILLE, JJ., concur.

On Rehearing.

SIMPSON J.

The majority of the court, consisting of ANDERSON, McCLELLAN, MAYFIELD, and SOMERVILLE, JJ., hold that the evidence was sufficient to leave it to the jury to say whether or not the injury resulted from the negligence of Mack Powell. The writer's views, concurred in by SAYRE, J., are as follows:

It is claimed on application for rehearing that the failure to have the light renewed was not the only negligence complained of, and the court's attention is invited to the fifth count of the complaint. It is manifest that, under that count the burden was on the plaintiff to show by the evidence that it was negligent in Powell to order plaintiff to go into the dust box to work, and to show a causal connection between such negligence and the injury. Creola Lumber Co. v. Mills, 149 Ala. 474, 485, 42 So. 1019. "Where the evidence is equally consistent with either view, with the existence or nonexistence of negligence, it is not competent for the judge to leave the matter to the jury. The party who affirms negligence has failed to establish it. This is a rule which ought never to be lost sight of." 1 Bailey's Personal Injuries, p. 560, § 1660. The burden is on the plaintiff to show, by the evidence, the causal connection between the negligence and the injury. A mere conjecture cannot be submitted to the jury, without evidence. 1 Bailey's Personal Injuries, p. 563, §§ 1672, 1675; p. 565, § 1682; p. 566, § 1688; p. 568, § 1694.

There is not a particle of evidence tending to show that the order was negligent, unless because the light was out; that was the reason given by the plaintiff when he objected to work, and that is the only reason suggested in the plaintiff's brief either on the original hearing or on this rehearing. There is no evidence as to where or how the "down comer" enters the dust box, whether into the top, where the explosion doors were, or into the side. There is no evidence that any one was in the "down comers," or that there was any scaffold therein; the only evidence about any scaffold being the testimony of plaintiff that the carpenters had erected "a scaffold" in the dust box.

Said fifth count alleges that said Powell "did negligently order the plaintiff to work in the place and in the manner, in which he was then engaged," etc.; and so far from there being any evidence that Powell ordered plaintiff to work in the manner which he did, the plaintiff testified that Powell was not anywhere near where the work was being done, and "that the only orders that Powell gave were to go in there and tear out the scaffolding or lagging, and that he gave no orders or directions as to the manner of doing the work, and was not where he could see and did not see the work as it progressed, or the particular manner in which it was being done," and yet in the face of this plain statement by the plaintiff himself, counsel would have us declare that said Powell did direct the manner in which the work should be done, because he told him to go there and work when there was no light there. "Manner" in this sentence means only the mode or method in which the thing is done, and cannot refer to the condition of the place in which the work is done. There is not only no proof that the said Powell directed the manner in which the work should be done, but there is none as to the manner in which it was done, further than as stated by the plaintiff--"when he and Charlie Merckle had passed one piece of lumber through the bootleg to Lehman Merckle down on the ground, and when he had been in said dust box not more than fifteen minutes a piece of lumber * * * fell from some point above." It does not appear what position the plaintiff was occupying, but from the facts that there is no evidence of any, but the one scaffold in the dust box, and that plaintiff was passing the pieces of lumber through the bootleg, down to a man on the ground, the presumption is strong that he was below said scaffold, and that he was there to remove, and that if there was any negligence about it, it was that of plaintiff himself, or of Merckle, who was working with him; in which case, of course, he could not recover.

In regard to the exclusion of the evidence on the part of the plaintiff, whether we follow the cases which hold that this is a proper proceeding, when the...