Sloss-Sheffield Steel & Iron Co. v. Terry

Decision Date07 November 1914
Docket Number740
Citation67 So. 678,191 Ala. 476
PartiesSLOSS-SHEFFIELD STEEL & IRON CO. v. TERRY.
CourtAlabama Supreme Court

Rehearing Denied Dec. 17, 1914

Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.

Action by Carlos Terry against the Sloss-Sheffield Steel & Iron Company, for damages sustained while in its employment. Judgment for plaintiff, and defendant appeals. Affirmed.

E.B Almon, of Sheffield, and Tillman, Bradley & Morrow and Charles E. Rice, all of Birmingham, for appellant.

R.T Simpson, of Florence, Kirk, Carmichael & Rather, of Tuscumbia, and Travis Williams, of Russellville, for appellee.

McCLELLAN J.

The motion to dismiss the appeal is without merit. It appears from the certificate of the clerk that the appeal was taken July 11, 1913, in vacation, between terms of this court. In such case the appeal was returnable at the next term, viz., that beginning in November, 1913. Martin Machine Works v. Miller, 132 Ala. 629, 32 So. 305. The transcript on appeal was filed February 2, 1914, during the term to which the appeal was returnable. The transcript was filed on the first day of the call of the division to which this appeal belongs. Rule 41, Supreme Court Practice (175 Ala. xx, 56 South. vi); Street v. Street, 113 Ala. 333, 21 So. 138; Martin, etc., v. Miller, supra; South. Ry. Co. v. Abraham, 161 Ala. 317, 49 So. 801. The appeal and supersedeas bond was approved by clerk on the date the appeal was taken, viz., July 11, 1913. The mere omission to date the bond is palpably without merit. Code, § 2886.

The plaintiff (appellee) was, when injured, in the employment and service of the defendant (appellant). The work in progress was the "surface mining" of ore by means of a shovel. The shovel was operated by steam power afforded by an engine that, with the shovel's apparatus, was resting and moved upon a temporary woodway laid on the surface of the earth, so as to allow the "dipper" to scoop the ore out of the face of the bank ahead of the shovel. Plaintiff was the craneman, whose duty it was to operate the dipper, and to scoop out the dirt and ore in the bank, and to empty the contents of the dipper, after each scoop, into cars provided for the purpose of moving the material.

The seventh count was drawn under the first subdivision of the Employers' Liability Statutes. Code, § 3910. In the usual terms, following the statute, it ascribes the injury to a defect in the condition of the ways, works, etc., of the defendant, and then avers:

"Which defect consisted in this: A wall of ore and clay near which plaintiff was engaged in the performance of his duty at the time of his said injuries was insecure and unsafe, so that a large embankment therefrom fell upon plaintiff, to his damage."

According to the apt authority of A.G.S.R.R. Co. v. Davis, 119 Ala. 572-582, 24 So. 862; Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 213, 37 So. 445; Huyck v. McNerney, 163 Ala. 244, 254, 50 So. 926; St. Louis R.R. Co. v. Sutton, 169 Ala. 389, 400, 55 So. 589, Ann.Cas. 1912B, 366; Pell City Co. v. Cosper, 172 Ala. 532, 536, 55 So. 214; Little Cahaba Co. v. Gilbert, 178 Ala. 515, 520-523, 59 So. 445; St. Louis R.R. Co. v. Phillips, 165 Ala. 504, 510, 511, 51 So. 638; Stephens v. Pierson, 8 Ala.App. 626, 62 So. 969--count 7 was sufficient in all respects, and was hence not demurrable. Neither the decision nor the opinion in T.C.I. & R.R. Co. v. Smith, 171 Ala. 251, 55 So. 170, qualify the ruling and doctrine of the long line of decisions noted above. Like considerations confirm the correctness of the trial court's action in overruling the demurrer to the fourteenth count.

Counts 10 and 13 were also sufficient. Reiter-Connolly Co. v. Hamlin, 144 Ala. 192, 213, 40 So. 280; L. & N.R. Co. v. Bargainier, 168 Ala. 567, 578, 53 So. 138, treating count 14 there under review. The citation, in brief, of Bargainier's Case, as authority for a contrary conclusion, results from mistaking the dissenting opinion for that of the majority.

Neither the eleventh nor the twelfth counts were subject to the demurrer. Woodward Iron Co. v. Marbut, 183 Ala. 310, 62 So. 804.

The report of the appeal will contain a condensed statement of all the counts mentioned above, except that numbered 7, which has been quoted before.

There is no assignment of error urged here as for the refusal by the court of general affirmative instructions with respect to particular counts. But we may here remark that there was no evidence tending to show a defect in the condition of the ways, works, etc., as, for instance, declared on in count 7. Langhorne v. Simington, 66 So. 85. Where the condition, from which the injury to the servant is alleged to have resulted, was the immediate product of the progress of the work in which the servant was properly engaged, that condition could not have been a defect, within the first subdivision of the statute (section 3910).

The general affirmative charge on the whole case was refused to defendant. The insistence for error in this regard may be disposed of by the citation of the decision made in ...

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  • Benton v. Finkbine Lumber Co.
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    ...... Iams v. Hazel-Atlas Glass Company, 251 Penn. 439;. Sloss-Sheffield Steel & Iron Company v. Terry, 67. So. 678; Shields v. Bergendahl-Bass ......
  • Dwight Mfg. Co. v. Holmes
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  • Clinton Mining Co. v. Bradford
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    • 11 Noviembre 1920
    ......v. Gilbert,. 178 Ala. 515, 59 So. 445; Sloss-Shef. S. & I. Co. v. Terry, 191 Ala. 476, 67 So. 678; T.C., I. & R.R. Co. v. Moore, 194 Ala. 134, 69 So. 540; Williamson . Co. v. McQueen, Adm'r, 144 Ala. 265, 270, 40 So. 306; Western Steel Car & Foundry Co. v. Cunningham,. 158 Ala. 369, 375, 48 So. 109; Reiter-Connolly Mfg. Co. v. ... to the person named. . . In. Sloss-Sheffield Steel & Iron Co. v. Green, 159 Ala. 178, 180, 49 So. 301, 302, the count upheld ascribed the. ......
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