Tobler v. Pioneer Mining & Mfg. Co.

• Decision Date: 21 December 1909
• Citation: 166 Ala. 482,52 So. 86
• Parties: TOBLER v. PIONEER MINING & MFG. CO.
• Court: Alabama Supreme Court

52 So. 86

166 Ala. 482

TOBLER v. PIONEER MINING & MFG. CO.

Supreme Court of Alabama

December 21, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by Mary Tobler, as administratrix, against the Pioneer Mining & Manufacturing Company. From a judgment for defendant rendered on a directed verdict, plaintiff appeals. Affirmed.

McClellan and Sayre, JJ., dissenting.

This was an action by the personal representative of a deceased servant against the master under the employer's liability act to recover damages for the injury which resulted in the death of the servant. The action is brought under sections 1751 and 1749 of the Code of 1896, commonly known as the "Employer's Liability Act."

The complaint consisted of 16 counts, some of which were added and amended at various times while the action was pending in the lower court. Various demurrers were filed by the defendant to the original complaint and as it was amended from time to time. The demurrers were overruled to some of the counts and sustained as to others. To the complaint as last amended the defendant filed several pleas; the general issue and to some of the counts special pleas of contributory negligence. It is not certain from an examination of the minute entries and judgments as shown by this transcript the precise issues upon which the trial was finally had. This uncertainty was probably occasioned, as stated by counsel for appellant in their brief, by two or three judges ruling upon the pleadings at different times, and because of the great length of time the case had been pending in the lower court. It is, however, stated by counsel for appellant and appellee that for the purpose of this appeal it must be taken that the trial was had upon the plea of general issue to all 16 counts of the complaint with the exception of 2, to wit, the thirteenth and fourteenth counts, and also upon the special pleas of contributory negligence as shown by the record as to all counts except those which declared upon wanton negligence or willful injury.

After the introduction of all the evidence, the court, at the request of the defendant, gave the general affirmative charge with the hypothesis "if the jury believe the evidence," and refused quite a number of written charges requested by the plaintiff. The jury retired, and notwithstanding this affirmative charge for the defendant with the hypothesis brought in a verdict for the plaintiff which was read in open court by the clerk of the court, and the court upon the motion of the defendant refused to receive the verdict after it was read, and proceeded again to charge the jury that they must find a verdict for the defendant, and sent them back to the jury room, to which action of the court the plaintiff objected and excepted. Later, the jury returned another verdict: "For the defendant according to instructions from the court." The court then entered up a judgment for the defendant, from which the plaintiff appeals, and assigns various errors as to the rulings of the court upon the pleadings and evidence which were adverse to the plaintiff.

It therefore clearly appears that the prime and pivotal question to be determined on this appeal is whether or not the affirmative charge with the hypothesis and without the hypothesis could and should have been given by the trial court for the defendant. If this instruction by the court to the jury could and should have been given by the trial court with the admission of all the evidence which the plaintiff sought to introduce, and with the exclusion of all the evidence which he sought to exclude, then there could be no injury as to any other error complained of by him.

In determining whether or not there was error in the giving of the affirmative charge for the defendant, the following questions must be determined: (1) Was there evidence before the jury tending to prove, or from which the jury had a right to infer, the truth of every material averment of any one count of the complaint? (2) Did the evidence conclusively prove, without conflict and without any legitimate adverse inference, from the evidence, any one or more of the pleas interposed by the defendant which were interposed as complete answers and defenses to every count of the complaint upon which issue was joined? If either one of these questions can be answered affirmatively, then the general affirmative charge was properly given for the defendant. If neither one of them can be answered affirmatively, then it was reversible error to give the charge.

The questions involved on this appeal are so important that it is probably well to set out one or more of the counts of the complaint in this opinion and to set out the substance of the evidence, as the court finds it upon the record, and which we may say is in the main practically conceded by counsel in their briefs.

The first count of the complaint was in words and figures as follows: "The plaintiff, Mary Schmidt, who sues as administratrix of Joseph Schmidt, deceased, claims of the defendant the Pioneer Mining & Manufacturing Company, a corporation, the sum of forty thousand ($40,000) dollars as damages, for that, whereas, on, to wit, the 6th day of March 1899, the defendant was a corporation and owned and controlled a certain iron manufacturing plant, known as Thomas Furnaces, at Thomas, in Jefferson County, Ala., and it became and then was its duty to have and keep its said plant ways, works, and machinery connected therewith in a reasonably safe condition, and to keep in its employ reasonably prudent and competent engineers, and other employés in and about the operation and control of its engine and other machinery in making repairs on its said work, and plaintiff avers that said deceased, Joseph Schmidt, was on said 6th day of March in the employment of the defendant as a mechanic under one Thomas McLaughlin, defendant's foreman, and was employed in repairing one of the defendant's said furnaces, known as No. 1; that while he was so employed and in the discharge of his duties as such mechanic he received orders from McLaughlin to take certain tools and a piece of lumber to the top of said furnace; that in compliance with such order he took the required articles and in company with one Brooks Hall, an employé of the defendant, got in the car on the incline railway, provided by the defendant for hauling material and men to the top of the furnace, and when they were safely seated in said car the said Hall gave the signal for the defendant's engineer in charge of the hoisting engine to draw them up, whereupon the defendant did then and there by its servants in charge of said hoisting engine carelessly and negligently hoist said car in such a manner that said car and plaintiff's intestate were dumped into the said furnace, and said deceased fell, to wit, 90 feet to the bottom of said furnace and was killed. To the damage of the plaintiff in the sum of forty thousand ($40,000) dollars as aforesaid, wherefore she brings this suit."

The second and third counts adopted the words of the first count down to and including the words "safely seated in said car."

The fourth and sixth counts adopted the words of the first count down to and including the words "as a mechanic."

The fifth count is for wanton negligence or willful injury, and avers that the defendant, by its servants who were making repairs on said furnace recklessly, willfully and wantonly dumped the said deceased into the said furnace and killed him.

The sixth count also declares upon wanton negligence or willful injury, in that the defendant by its servants recklessly, willfully, and wantonly ran said car to the top of the furnace and dumped said deceased into the furnace whereby he fell to the ground and was killed.

The seventh count of the complaint was in words and figures as follows: "Plaintiff, who sues as administratrix of Jacob Schmidt, deceased, claims of the defendant the sum of forty thousand ($40,000) dollars damages for that, whereas, on, to wit, the 6th day of March, 1899, the defendant was a corporation, and controlled and operated a certain iron manufacturing plant, known as the "Thomas Furnace," and situated at Thomas, Jefferson county, Ala., and it became and was its duty as such manufacturer to keep its ways, works, and machines or plants connected thereto, or used in its business as such manufacturer, in a reasonably safe condition while being operated or repaired, and that on said day the plaintiff's intestate was in the employ of the defendant as a mechanic, and while so in the defendant's employ and in the faithful discharge of his duties as such employé he was thrown from one of defendant's cars into its furnace and killed, and plaintiff avers that the death of said decedent was caused by the reason of a defective condition of defendant's works, ways, machines, or plant, in that, to wit, there was no chock or other good and sufficient means to stop said car provided, and defective condition of such was known or by reasonable diligence could have been known to defendant or its servants who were intrusted by defendant with the duty to see that machinery, ways, works, and plant were kept in safe and proper condition, to the damage of the plaintiff in the sum of forty thousand dollars aforesaid, therefore she sues."

The eighth count with somewhat kindred preliminary averments to the others avers that decedent was killed by reason of the negligence of a person in the employ or service to whose orders or directions intestate was then and there bound to conform and did conform, and that his death resulted from his having so conformed.

The ninth count adopted the first count down to the words "safely seated in the car," and alleges that...