Sloss-Sheffield Steel & Iron Co. v. Smith

• Decision Date: 30 May 1905
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. SMITH.
• Court: Alabama Supreme Court

40 So. 91

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

Supreme Court of Alabama

May 30, 1905

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

"Not officially reported."

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

This is an action by appellee, by next friend, for personal injuries sustained while in the employment of appellant corporation. The complaint contained five counts. The manner of the plaintiff's injury in each count is described as follows "And plaintiff avers that upon reaching a point a short distance from said standing car and the mules attached thereto he foresaw that a collision was inevitable and consequent to the injury to the mule he was driving or to the one attached to the standing car unless he should do something to avert the collision, and he jumped from the car he was on and attempted to stop it and the mule attached thereto, but he was unable to stop said moving car and the mule attached thereto, and said car came with such force as to pull or drag him along to or near the place of the collision, throwing or dragging him upon the ground or against the standing car or mule." The counts further counted on the negligence of one Bivens, a superintendent while in the exercise of his superintendence and failing to provide lights by signal men of the obstruction on the track.

The second plea of defendant is as follows: "(2) Defendant for further answer to the complaint, says that the plaintiff negligently failed to properly drive or operate the car of which he had charge as driver, and as a proximate consequence whereof he was injured." Demurrers were sustained to this plea.

Plea 7 "Defendant, for further answer to the complaint, says that before proceeding on the way down the said hill or grade in said mine plaintiff's intestate was advised or warned of the danger ahead on account of other cars or obstructions on the track, but that nevertheless, negligently disregarding said advice or warning and said danger, he proceeded rapidly down the said hill or grade, and as a proximate consequence thereof was injured." Demurrers were sustained to this plea.

The court in his oral charge to the jury used the following words: "In passing upon whether plaintiff negligently exposed himself to danger in a collision of the cars, you have to apply your ordinary common sense and say whether or not a party of the age and experience he had would have done differently from what he did. If you believe an ordinary boy of 16 years, with the knowledge and experience surrounding him, and all that, the danger and suddenness, taking all those circumstances into consideration, and any more I may have overlooked--the knowledge of the boy, the age of the boy, his experience, his knowledge of the conditions--and say whether an ordinary boy 16 years old would have done differently. If he would have done differently, and the failure to do that contributed to his injuries, he could not recover, because the law makes no distinction between who is most at fault."

"Defendant excepted thereto, stating: "These exceptions are simply to the fact that the court left it to jury to determine whether or not the action of the boy in grasping the car was one of the natural and probable results of any act or omission of the defendant. Defendant contends that this was a proposition which it was the duty of the court to pass upon, and these exceptions are not to the phraseology employed by the court in submitting the same."

Among others, the defendant was refused the following charges: "(7) If you believe from the evidence that the plaintiff was at fault in seizing or taking hold of the car in an attempt to stop it, or prevent it or the mule and team from colliding with an obstruction, your verdict should be for the defendant." "(9) If you believe from the evidence that the plaintiff, immediately after he jumped off the car, was not in danger of being struck or knocked down thereby, but that he caught hold of the car or attempted to do so, and as a proximate consequence thereof was thrown down and injured, your verdict should be for the defendant." "(15) If you believe from the evidence that the defendant ought not reasonably to have foreseen that what happened would probably happen as the result of its conduct, it is not at fault, and you should find for the defendant. (16) Unless the jury believe from the evidence that the plaintiff was injured while acting under instructions of Joe Bivens, the defendant's bank boss, your verdict should be for the defendant."

James Weatherly, for appellant.

A. O. Lane and J. T. Shugart, for appellee.

ANDERSON J.

The complaint was not subject to the demurrers that were interposed, and they were properly overruled.

The second plea was too general, and has often been condemned by this court, and the demurrer thereto was properly sustained. L. & N. R. Co. v. Markee, 103 Ala. 160, 15 So. 511, 49 Am. St. Rep. 21; Tenn. Co. v. Herndon, 100 Ala. 451, 14 So. 287.

The 7th plea sets up as a defense a warning to the plaintiff's intestate. As the complaint in this case avers only an injury to the plaintiff, who sues by next friend, we must assume that he is in esse, as said plea is the only intimation we have that the injuries complained of proved fatal.

The defendant's counsel asked Dan Calsaw: "State whether or not there was a custom or rule of stopping at 20th right before going down the hill." Witness answered: "I always stopped before I went down." This answer was properly excluded. It was not responsive to the question asked, and what the witness...