Sloss-Sheffield Steel & Iron Co. v. Hutchinson

• Decision Date: 21 December 1905
• Citation: 144 Ala. 221,40 So. 114
• Court: Alabama Supreme Court
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. HUTCHINSON.

40 So. 114

144 Ala. 221

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

Supreme Court of Alabama

December 21, 1905

Rehearing Denied Jan. 30, 1906.

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

"To be officially reported."

Action by Samuel M. Hutchinson against the Sloss-Sheffield Steel &amp Iron Company. From a judgment for plaintiff, defendant appeals. Reversed.

This was an action by appellee to recover damages for injury to his hand, caused by a stationary engine which he was operating. It was brought under the employers' liability act and counts on the defect in the ways, works, machinery or plant of defendants. It is alleged that the engine was part of these, and was defective; but no special defect is pointed out by the complaint. Demurrers were overruled, and defendant filed plea of general issue and a special plea as follows: "The defendant, for further answer to the complaint, says that the plaintiff negligently exposed his hand to the danger of its being caught and mashed or cut, or otherwise injured, by the machinery or appliances of said engine while it was in operation, and as a proximate consequence thereof he was injured as complained of."

The charges requested by the defendant and refused by the court were as follows: (1) The general affirmative charge. (2) "I charge you that under the evidence the governor on the engine in question was such as is used on engines in ordinary use at prudently operated plants of this kind. * * * (4) In weighing the testimony of the witnesses in this case and considering the amount of credit you will give to each of them, you have a right to consider the interest they have in the result of the action, if any, their connection with the parties to the suit, and all other facts and circumstances and apply it to your observation and experience in life, in order to arrive at the truth; and you must bear in mind, too, that when plaintiff becomes a witness he must be subjected to the same scrutiny. * * * (6) You cannot find for the plaintiff if you believe that he occupied a negligent position about said engine, and that as a proximate consequence of such negligence his hand was caught and injured. (7) If you believe from the evidence that the governor was defective, and that that defect caused the engine to speed up and injure the plaintiff's hand, still you cannot find a verdict for the plaintiff, if you further believe from the evidence that the plaintiff was himself guilty of negligence in and about the manner in which he was oiling said engine, and that such negligence proximately contributed to his injury."

There was motion for new trial, which was refused.

Anderson and Denson, JJ., dissenting.

Weatherly & Stokely, for appellant.

Bowman, Harsh & Beddow, for appellee.

ANDERSON J.

The complaint in this case avers that the engine was defective, thus particularizing what part of the ways, work, machinery, or plant was defective, and need not have specified what particular part of the engine was defective. The demurrer was properly overruled. Mary Lee Coal & Ry. Co. v. Chambliss, 97 Ala. 171, 11 So. 897; Bear Creek Mill Co. v. Parker, 134 Ala. 293, 32 So. 700; A. G. S. R. R. v. Davis, 119 Ala. 572, 24 So. 862; Southern R. R. v. Guyton, 122 Ala. 231, 25 So. 34. The rule declared in the case of L. & N. R. R. v. Jones, 130 Ala. 456, 30 So. 586, is not in conflict with the foregoing authorities. There the count that was condemned failed to specify what part of the appliances used by the defendant to get said car upon the track was defective, as many appliances may have been used in the act or attempt.

The second assignment of error is as follows: "The court erred in overruling defendant's objection to the following question, 'Would an engine suddenly speed up that way unless that defect existed?' " The record shows that the defendant objected to this question, but assigned no ground, and does not show that defendant excepted to the ruling of the court. After the answer the defendant moved to exclude same, and excepted to the ruling of the court in refusing to exclude, but the action of the court upon the motion to exclude is not complained of in the assignment of error. There was no error in permitting the defendant to testify that he had to oil those parts where he was oiling. It was not a mere conclusion of the witness, but was a narrative of a part of his duties, and as he had charge of the engine he was certainly competent to testify and give his opinion as to whether or not certain parts of the engine needed oiling. If there was any evidence tending to support the material averment of the complaint, then, unless the evidence conclusively and as a matter of law supported the special pleas, the general affirmative charge for the defendant should not have been given. Southern R. R. v Shelton, 136 Ala. 191, 34 So. 194, and cases there cited. In the case at bar the plaintiff testified: "While I was running the engine something got the matter with it; the...