Sloss-Sheffield Steel & Iron Co. v. Capps

• Citation: 182 Ala. 651,62 So. 66
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. CAPPS.
• Decision Date: 17 April 1913
• Court: Supreme Court of Alabama

62 So. 66

182 Ala. 651

SLOSS-SHEFFIELD STEEL & IRON CO. v. CAPPS.

Supreme Court of Alabama

April 17, 1913

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by Arthur Capps, by his next friend, against the Sloss-Sheffield Steel & Iron Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The allegations of the sixth count sufficiently appear from the opinion. The seventh count was based upon subdivision 1 of the Employer's Liability Act; but the negligence alleged was that the cable or rope attached to the said car, and used for the purpose of pulling the same out of said mine, was so defectively constructed that it pulled the said car sideways off the track upon which it was running. The demurrers to count 2 raise the question as to the sufficiency of its allegations to show actionable negligence, and that it does not allege sufficiently the defect in the car, or in what respect the ways, works, machinery, etc., were defective. The portions of the oral charge excepted to are as follows "And you will also take into consideration the time that he lost, or may lose in the future, from his work as a proximate result of the negligence of the defendant."

Tillman Bradley & Morrow, of Birmingham, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

MAYFIELD J.

The plaintiff is a minor, and sues by next friend, under the Employer's Liability Act (Code 1907, §§ 3910-3913), to recover damages for personal injuries received and suffered by him, while in the employ of defendant (appellant), in its mine, as a chain boy, in consequence of the derailment of a tram car on which he was riding. The trial resulted in a verdict and judgment for $800.

It is first insisted by appellant that the sixth count of the complaint was insufficient, as was pointed out by its demurrer.

This count is drawn under the first subdivision of the Employer's Liability Act, and practically, if not literally, follows the language of the statute, and concludes by describing the particular defect as "a defective condition of the said car that was derailed and injured plaintiff, as aforesaid."

While it is possible and probable that this defect could have been described with more particularity and certainty, we are not prepared to say that it was not sufficient, under the circumstances alleged in connection with it, such as the age of the plaintiff, his lack of specific knowledge of the particular defect, and the fact that the car was a mere tram car used in the mine. Sloss Co. v. Hutchinson, 144 Ala. 221, 40 So. 114; Mary Lee Co. v. Chambliss, 97 Ala. 171, 11 So. 897.

The case is readily distinguishable from that of Tennessee Coal, Iron & Railroad Co. v. Smith, 170 Ala. 251, 55 So 170. There the only defect attempted to be alleged was "the condition of the mine entry." The count in that case afforded very little, if any, information as to any particular defect; the defendant was not informed of what it was to defend against. There were shown to exist in that case several entries, and as an entry is a mere opening or way into the mine it was impracticable, if not impossible, to learn what defect, if any, the count referred to.

Here the defect alleged was as to a tram car, which caused it to be derailed. On account of the plaintiff's age and of the nature of his employment, he probably had no means of...