Shelby Iron Co. v. Bierly

• Decision Date: 19 December 1918
• Docket Number: 7 Div. 916
• Citation: 80 So. 806,202 Ala. 422
• Parties: SHELBY IRON CO. v. BIERLY.
• Court: Alabama Supreme Court

80 So. 806

202 Ala. 422

SHELBY IRON CO. v. BIERLY.

7 Div. 916

Supreme Court of Alabama

December 19, 1918

On Rehearing, February 13, 1919

Appeal from Circuit Court, Shelby County; Lum Duke, Judge.

Action by H.F. Bierly against the Shelby Iron Company for damages for personal injuries while in its employment. From judgment for plaintiff, defendant appeals. Reversed and remanded.

The record does not disclose any demurrer to counts A and B of the amended complaint, but count A charges defect in the ways, works, plant, or machinery of the defendant causing injury to plaintiff, and count B charged a failure negligently to furnish the plaintiff with a reasonably safe place within which to do his work. The following are the pleas:

(3) Defendant avers that on or about the 28th day of July 1917, it was engaged in the manufacture of pig iron at Shelby, in Shelby county, Ala., and that on or about said date H.F. Bierly, the plaintiff in this cause, was in defendant's employment as a filler, it being his duty to roll upon a wagon or cart, or two-wheeled cart, ore, lime rock and charcoal and empty the same in the hopper of furnace No. 2, and defendant avers that on said date there was a slip in said furnace, that is, the said lime rock, charcoal, and iron ore became clogged in said furnace for a time, suddenly slipped down for several feet in said furnace, which caused gas to escape through the explosion doors which are placed on the downcomers for the purpose of permitting said gas to escape, and defendant avers that said slips are frequent in all blast furnaces, and that the plaintiff, Bierly, well knew that said slips were liable to occur when he accepted his said employment. Defendant avers that at the time said gas escaped the said Bierly was on top of said furnace, and instead of remaining at his place of work, where he would have been safe, he left his said place of work, getting down from the top of said furnace, and ran into said gas and was burned, and defendant avers that plaintiff's injuries were proximately caused by his own negligence in leaving his place of safety and going into the place of danger.

(4) Defendant avers that on or about the 28th day of July 1917, it was engaged in the manufacture of pig iron at Shelby, Shelby county, Ala., and that on said date the plaintiff was in the defendant's employment as a filler it being his sole duty to roll up on a two-wheel cart ore, lime rock, or charcoal from the cages and empty said carts in the hopper of furnace No. 2, and defendant avers that on said date there was an explosion in said furnace caused by the slipping of the rock, charcoal and iron, which frequently happens in all blast furnaces, and defendant avers that, although it had furnished this plaintiff with a safe place to work, and he was in safety at his place of work when the explosion came, he ran away from said place where it was his duty to remain, running down the steps leading from the top of said furnace, and ran into the gases escaping from the furnace and was burned. Defendant avers that the said plaintiff in leaving his place of work and going into the gases was guilty of contributory negligence which proximately caused his injury.

Plea 8 is as follows:

Defendant avers that a short time before plaintiff's injury he, the said plaintiff, was working as a filler of the furnace on top of the said furnace at No. 1 furnace, Shelby, Shelby county, Ala., and that while plaintiff was so engaged a slip occurred in said furnace, and defendant avers slips are frequent in all blast furnaces, which fact was well known to plaintiff, and defendant avers that place where plaintiff was put to work by said defendant was safe, and had plaintiff remained at said place he would not have been injured, but defendant avers that when slip came said plaintiff, unlike a reasonably prudent man would have done under all circumstances, negligently left his place of safety where he was working and walked into said escaping gas and was injured. Defendant avers that plaintiff's negligent act of leaving his place of safety as aforesaid proximately contributed to his said injury.

Leeper, Haynes & Wallace, of Columbiana, for appellant.

Riddle & Riddle, of Talladega, and Riddle & Ellis and Longshore & Koenig, all of Columbiana, for appellee.

SAYRE J.

Appellant, who was the party defendant in the trial court, assigns for error the action of the court in overruling the demurrers to counts A and B of the amended complaint. This court has held on a similar record that it could not review the rulings in question for the reason that the record does not show what grounds of demurrer were taken against the amended complaint. Shelby Iron Co. v. Bean, 81 South. ---.

The demurrers to pleas 3 and 4 should have been overruled. These pleas stated facts from which the jury may have inferred negligence on the part of plaintiff contributing proximately to his injury, and then drew the inference which the pleader expected the jury to draw. The facts alleged being sufficient unto the end for which they were alleged, this was good pleading. It is for the court to say whether the facts alleged will warrant an inference of negligence; it is for the jury to say, upon the facts submitted to them, whether negligence ought to be inferred. In many cases the question whether due care has been used is, in the nature things, a question of fact to be determined by the jury, even though the evidence be without conflict (Lord v. Mobile, 113 Ala. 360, 21 So. 366; West v. Thomas, 97 Ala. 622, 11 So. 768; A.G.S.R.R. Co. v. Arnold, 84 Ala. 159, 4 So. 359, 5 Am.St.Rep. 354); and in every case, unless it be a case where res ipsa loquitur, the pleader must allege facts and in allegation draw the conclusion for which he contends. Right plainly, it seems from the record and the briefs, the trial judge followed the general principle above stated; but his opinion appears to have been that these pleas did not draw the conclusion of negligence on the part of plaintiff; this for the reason that they omitted to characterize plaintiff's action as "negligently" done. But we think the language of the conclusion of these pleas, viz. (plea 4), "Defendant avers that the said plaintiff, in leaving his place of work and going into the gas (meaning, of course, in the circumstances stated in the plea), was guilty of contributory negligence which proximately caused his injury," and substantially the same language in plea 3--this language, in our judgment, drew the necessary conclusion from facts which warranted that conclusion. These pleas would not have been more specific in the respect now under consideration had they averred that plaintiff "negligently" did the act alleged.

But it is said that defendant had the advantage of these pleas in plea 8 upon which the case was submitted to the jury; that is, the error committed was affirmatively shown not to have operated to defendant's...