Sloss-Sheffield Steel & Iron Co. v. Stewart

• Decision Date: 18 May 1911
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. STEWART.
• Court: Alabama Supreme Court

55 So. 785

172 Ala. 516

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

Supreme Court of Alabama

May 18, 1911

Rehearing Denied June 8, 1911.

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

Action by Wade Stewart against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Count 2 is as follows: "Plaintiff claims of defendant $5,000 as damages, in this: That on and prior to the 30th day of March 1909, the defendant was the owner of an ore mine in Jefferson county, Ala., and was operating the same, and that plaintiff was rightfully at work in said mine, assisting one Goodloe Robinson, who was employed by the defendant to mine ore in its said mine as a contractor, the plaintiff being hired by said Goodloe Robinson to assist him in and about the work of mining ore in said mine, and while plaintiff was so engaged at work in and about said mine, on or about the 30th day of March, 1909, a rock or some other substance fell from the roof of said mine upon plaintiff. [Here follows a catalogue of his injuries and special damages, the injuries being alleged to be permanent.] Plaintiff avers that his said injuries were proximately caused by the negligence of the defendant, in this: That it failed to use due care in or about making said roof reasonably safe and secure from falling, as it was its duty to do."

The demurrers were: "That it does not show that defendant violated any duty it owed to the plaintiff. That the facts relied upon to establish negligence do not show negligence as a matter of law. It does not show that the defendant negligently failed to use due care in and about making said roof safe and secure from falling, and that the allegation relative thereto was a mere conclusion of the pleader. The facts relied upon to show a duty owed by defendant to the plaintiff do not give rise to such duty."

The witness Stenson testified that plaintiff was 28 years old when he was hurt, and that he received $2 per day; that that was the amount the contractor said he paid him, but that the witness turned in the time for plaintiff nearly as regularly as the contractor did, and that he turned in plaintiff's time at $2 per day.

The question in the third assignment of error is as follows addressed to Dr. J. H. Dunn: "Is he, or not, suffering from the injury he was suffering from at the time you made the first examination?" The answer showed that the plaintiff was suffering from the same injury that he suffered from at the time of the first examination.

The appellee propounded the following hypothetical question to Dr. Hanby: "Doctor, if a man sustains an injury such as you have described to the jury, and after two years' time he still suffered with a ruptured condition of the membranes of the bladder, would it not, in your judgment, be a permanent injury?" Objection was interposed by the appellant, and, the objection being overruled, the witness answered: "I don't know. I haven't had any experience in that. As a rule, they suffer some inconvenience about stooping over, or lifting, for possibly a period of 18 months, and sometimes, possibly, a little longer."

The following questions were propounded to the witness Holsenback on cross-examination: (1) "You had various contractors in different headings in that mine, requesting you almost daily for timbers to be set there?" The witness answered: "Yes, sir; I can't recollect the different contractors, nor the persons requesting timbers in the different headings, nor the times at which they requested same." (2) "Frequently you would have two or more men requesting timbers at the same time?" "Yes sir." (3) "Sometimes it would take two, three, or four days to get around to the last man, when two or three requests came at the same time?" "Yes, sir."

The following part of the oral charge was excepted to: "It is the duty of the defendant to exercise due care, ordinary care, to keep its premises in a reasonably safe condition. It is the defendant's duty to use the same care that an ordinarily prudent man would, under the same or similar circumstances; and if the defendant has exercised that degree of care that an ordinarily prudent man would under the same or similar circumstances, it would not be guilty of negligence; but if it failed to do this, failed to exercise the care an ordinarily prudent man would have exercised, then it would be guilty of negligence."

The second exception to the oral charge is as follows: "An attorney has called my attention to the fact that I did not tell you, if there was negligence on the part of the plaintiff, it had to be the proximate result of the injuries to bar his recovery. The same rule applies to both sides. If one side was guilty of negligence, it must proximately result in injury, or he would not be entitled to recover. I mean, if the plaintiff is guilty of negligence, to bar recovery, it must be the proximate result of his injury."

The third exception is as follows: "Gentlemen, in considering the evidence of the defendant in this case, you will find out about the work in and about the timbering of the mine, in maintaining the roof. If you find that they fail to use due care in that respect, then they would be guilty of negligence; but, if they did use due care that an ordinarily prudent man would use in and about the same or similar mines in maintaining the roof, they would not be guilty of negligence. The court further charges the jury that the plaintiff would be entitled to recover damages for any decrease in his earning capacity, if they believe from the evidence there was such a decrease."

The following is charge 17: "I charge you that the plaintiff is not entitled to recover damages in this case for any decrease in his earning capacity."

Tillman Bradley & Morrow and M. M. Baldwin, for appellant.

Matthews & Matthews, for appellee.

ANDERSON J.

Count 2 was not subject to the grounds of demurrer interposed thereto. It is true that it does not aver that the defendant negligently failed to exercise reasonable care, etc., in furnishing the plaintiff with a reasonably...