Standard Cooperage Co. v. Dearman

• Citation: 86 So. 537,204 Ala. 553
• Decision Date: 21 October 1920
• Docket Number: 2 Div. 716
• Parties: STANDARD COOPERAGE CO. v. DEARMAN.
• Court: Supreme Court of Alabama

86 So. 537

204 Ala. 553

STANDARD COOPERAGE CO. v. DEARMAN.

2 Div. 716

Supreme Court of Alabama

October 21, 1920

Appeal from Circuit Court, Sumter County; R.I. Jones, Judge.

Action by Howard Dearman against the Standard Cooperage Company for damages for injuries received while in defendant's employment. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

In action for injuries to a servant, a charge requested by plaintiff which used the word "him" in reference to the corporate defendant was misleading.

After stating the time and place and that plaintiff was an employee of defendant in a heading mill that defendant was operating count one alleges that plaintiff was caught in a wheel or belting of the machinery, and, as a proximate consequence thereof, plaintiff suffered the following injuries: (Here follows catalogue of injuries.)

Plaintiff avers that he was so caught in said wheel or belting and he suffered said injuries and damage by reason and as a proximate consequence of a defect in the condition of the ways, works, machinery, or plant used in or connected with the said business of defendant, which said defect arose from or had not been discovered or remedied owing to, the negligence of defendant or of some person in the service or employment of defendant and intrusted by defendant with the duty of seeing that the said ways, works, machinery, or plant were in proper condition, viz., the plank, timber, or platform on which employees were compelled to stand in order to put on the belt on the elevated pulley or wheel were loose, too narrow, too weak, or otherwise improper or unfit for the purpose for which same was being used by defendant.

Count 5, after stating the time and place, alleges that it was part of plaintiff's duty to keep the belt on a certain wheel or pulley in the plant of the defendant or to replace said belt whenever it should come off; that said wheel or pulley was about 12 feet above the floor of the plant; that defendant, for the purpose of supplying a way by which the plaintiff could reach said pulley or wheel and put said belt on, did, by its agents and employees, to whose orders the plaintiff was bound to conform, and did conform, lay a narrow plank, to wit, a plank only 12 inches wide over the sleepers or joists of a platform about 6 feet from the floor and along which it was the orders of said officers and agents of defendant to plaintiff that he should walk to said pulley or wheel and put on said belt, should it ever come off while plaintiff was engaged in his duty at said mill; that said narrow plank was an unsafe and a most dangerous appliance, and while engaged in an attempt to put on said belt, and while on said narrow plank, and owing to the height of said pulley and the meager foothold furnished by said plank, plaintiff was caught in said wheel or belt of said machinery, and as a proximate consequence thereof suffered the damages and injuries as set out in count 1 of this complaint. And plaintiff avers that the defect in the ways, works, machinery, or plant of the defendant arose from or had not been discovered or remedied owing to the negligence of defendant, or of some person in the service or employment of defendant, and intrusted by the defendant with the duty of seeing that the said ways, works, machinery, or plant were in proper condition.

The demurrers raised the question as to whether or not count 1 states the cause of action under the first subdivision of the Employers' Liability Act (Code 1907, § 3910), in that it does not, as a matter of law, set up facts showing the defect in the platform or timber. The same question is raised as to count 5.

The pleas set up knowledge on plaintiff's part that the plank or scaffold was too narrow and insecurely fastened, and with such knowledge and an appreciation of the danger thereof he went upon said plank or scaffold and assumed the risk; also, that he attempted to replace a belt on a revolving pulley, and in so doing negligently permitted or allowed his hand to be inserted or caught between said belt and said revolving pulley, and, as a proximate consequence thereof, sustained the injuries complained of.

The following is designated charge "A" given for the plaintiff:

"I charge you that if you believe from the evidence that the plank on which the plaintiff was required to stand in order to put the belt on the pulley was too loose, too narrow or otherwise unfit for use, and that this defect was one of two concurrent, efficient causes, other than the plaintiff's fault, which co-operated directly to produce the injury, this, under the authorities, is all that is requisite for fastening liability on him, and you must find for the plaintiff and assess the damages as you think from the evidence he is entitled to."

The other facts sufficiently appear from the opinion of the court.

Stokely, Scrivner & Dominick and James A. Mitchell, all of Birmingham, for appellant.

Patton & Patton, of Livingston, and M.V.B. Miller, of Meridian, for appellee.

THOMAS J.

The action was under subdivision 1 of Code, § 3910, and was submitted to the jury on counts 1 and 5. Count 2 was eliminated by demurrer, and counts 3 and 4 were stricken on plaintiff's motion. Issue was joined on pleas of the general issue and contributory negligence.

Of the eliminated counts nothing is presented for review. There was no error in overruling demurrer to counts 1 and 5, charging a defect in the ways, works, machinery, or plant that caused plaintiff's injury--"a narrow plank" which was "an unsafe and most dangerous appliance," or a plank on which plaintiff was compelled to stand in the discharge of the duty of his employment was "loose, too narrow, too weak, or otherwise improper or unfit for the purpose for which same was being used by defendant." Sloss I. & S. Co. v. Tilson, 141 Ala. 152, 37 So. 427; U.S. Rolling Stock Co. v. Weir, 96 Ala. 396, 11 So. 436; T.C.I. & R. Co. v. Moore, 194 Ala. 134, 69 So. 540; Patterson v. Ala. F. & I. Co., 194 Ala. 278, 282, 69 So. 952; South Brilliant Coal Co. v. McCollum, 200 Ala. 543, 76 So. 901; L. & N.R.R. Co. v. Lowe, 158 Ala. 391, 48 So. 99. The plank in question was a part of the "ways" of defendant's plant (U.S. Rolling Stock Co. v. Weir, supra; L. & N.R.R. Co. v. Pearson, 97 Ala. 211, 12 So. 176), or a part of said "plant" (Huyck v. McNerney, 163 Ala. 244, 50 So. 926; Grasselli Chem. Co. v. Davis, 166 Ala. 471, 52 So. 35.)

Plaintiff's counsel propounded to plaintiff, as a witness, over defendant's objection and exception, the question: "Did the narrowness of that plank, was that what caused you to slip?" and was answered: "It was." Again: "What happened, if anything, when you slipped?" The reply was: "My arm went over just like that and broke." This was the injury made the basis of the instant suit for damages. It is settled in this jurisdiction that a witness may testify to a fact which is pertinent to the issue being tried, even to a shorthand rendition of facts. B. & A. Ry. v. Campbell, 203 Ala. 296, 82 So. 546, 548; Miller v. Whittington, 202 Ala. 406, 80 So. 499; Brindley v. State, 193 Ala. 43, 69 So. 536, Ann.Cas.1916E, 177; B.R.L. & P. Co. v. Glenn, 179 Ala. 263, 269, 60 So. 111; C. of Ga. Ry. Co. v. Stephenson, 189 Ala. 553, 556, 66 So. 495; Perrine v. Sou. Bitulithic Co., 190 Ala. 96, 101, 66 So. 705; Middlebrooks v. Sanders, 180 Ala. 407, 410, 61 So. 898; Birmingham Min. R.R. Co. v. Wilmer, 97 Ala. 165, 169, 11 So. 883; McVay v. State, 100 Ala. 110, 113, 14 So. 862; James v. State, 104 Ala. 20, 28, 16 So. 94; L. & N.R.R. Co. v. Williams, 183 Ala. 138, 62 So. 679; S. & N.A.R. Co. v. McLendon, 63 Ala. 266, 276. Some of the authorities on a shorthand rendition of facts were recently collected in L. & N.R.R. Co. v. Hayward, 201 Ala. 9, 75 So. 22. Was the question and answer merely a shorthand rendition of fact, or an exposition of the opinion of the witness that was a usurpation of the prerogative of the jury? A witness, not being an expert, may not draw the conclusion for the jury. Pope v. State, 174 Ala. 63, 57 So. 245. That is, an otherwise proper question may not be propounded to a nonexpert witness which will elicit an opinion from him in practical affirmation or disaffirmation of a material issue presented by the pleadings in a case. Miller v. Whittington, supra; Harbison-Walker Ref. Co. v. Scott, 185 Ala. 641, 646, 64 So. 547; Connors-Weyman Steel Co. v. Harless, 202 Ala. 317, 80 So. 399, 401; McNamara v. Logan, 100 Ala. 187, 197, 14 So. 175; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 408, 67 So. 604; Stewart v. S.S.S. & I. Co., 170 Ala. 544, 549, 54 So. 48, Ann.Cas. 1912D, 815.

The question was not of the danger of the narrow plank being used and supported as it was by defendant at the place of plaintiff's injuries, but whether the narrowness of that plank was the proximate cause of plaintiff's slip and fall and of his injuries, of which complaint is made. The question and answer were of the issue presented by the pleadings, and the answer was a positive denial of defendant's pleas by one not sufficiently qualified as an expert. It was not within one of the exceptions to the general rule. See B. & A. Ry. Co. v. Campbell, supra; Brandon v. Progress Distilling Co., 167 Ala. 365, 52 So. 640. An expert may have only testified that and plank was too narrow and dangerous for and purposes of its use; not whether the defect specified caused plaintiff to slip and fall, receiving the injuries for which suit is sought to be maintained. L. & N.R.R. Co. v. Landers, 135 Ala 504, 512, 33 So. 482; McVay v. State, supra; Miller v....