U.S. Cast Iron Pipe & Foundry Co. v. Williams

• Decision Date: 09 April 1925
• Docket Number: 6 Div. 258
• Citation: 104 So. 28,213 Ala. 115
• Court: Alabama Supreme Court
• Parties: UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. WILLIAMS.

104 So. 28

213 Ala. 115

UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. WILLIAMS.

6 Div. 258

Supreme Court of Alabama

April 9, 1925

Rehearing Denied April 30, 1925

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Suit for personal injuries by T.L. Williams against the United States Cast Iron Pipe & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J.P Mudd, of Birmingham, and Brenton K. Fisk, of Washington D.C., for appellant.

Fred Fite, of Birmingham, for appellee.

MILLER J.

This is an action for damages for injuries to his fingers brought by T.L. Williams against the United States Cast Iron Pipe &amp Foundry Company, a corporation, alleged to have been caused by the negligent loading of pipes on a car by the defendant, which plaintiff as an employee of the Birmingham Belt Railroad Company had to handle. The defendant pleaded general issue, with special leave to introduce in evidence any matter relevant as a special defense. There was a verdict in favor of the plaintiff, and from a judgment thereon by the court this appeal is prosecuted by the defendant.

The plaintiff makes motion to strike the bill of exceptions from the record, because it was not signed by the presiding judge within 60 days after presentation as provided by section 6433 of the Code of 1923. This statute (section 6433, Code of 1923) changes the time in section 3019, Code of 1907, from 90 to 60 days within which, after presentation, a bill of exceptions must be signed by the presiding judge; but this statute did not become operative until August 17, 1924. This bill of exceptions was presented on July 21, 1924, to and it was signed by the presiding judge on October 9, 1924. It was signed within 90 days after presentation, under the statute (section 3019, Code of 1907), which was applicable when presented, and which governed and controlled in fixing the time to sign it. So the motion must be and is overruled and refused. Section 3019, Code of 1907, and sections 11 and 6433, Code of 1923; Montgomery v. Leith, 162 Ala. 246, 50 So. 210.

There is only one count in the complaint. It was amended twice, and defendant's demurrers to it as last amended were overruled by the court. The defendant insists the court erred in overruling these grounds of its demurrer (1) for aught appearing in the complaint the alleged injuries may not have been the proximate result of the alleged negligence; (2) it is not alleged with sufficient certainty how the defendant was negligent; and it fails to aver sufficient causal connection between the injury and the negligence.

The complaint avers the defendant loaded a car for shipment; it was his duty as an employé of the Birmingham Belt Railroad Company to handle it over his employer's line as a switchman; that defendant so negligently loaded said car of pipe that a part of said pipe slipped and threw plaintiff down, cut off a portion of plaintiff's fingers, and injured him, proximately causing plaintiff to suffer great mental and physical pain. The complaint avers the duty of the defendant to properly load the car with the pipe. It avers a breach of that duty that defendant so negligently loaded the car of pipe that a part of it slipped and threw plaintiff down; and it avers his injuries were proximately caused thereby; and it avers his duty to handle the car in switching the same under his employment by the Birmingham Belt Railroad Company. This count states a cause of action against the defendant, and it is not subject to the grounds of demurrer assigned to it, and the court did not err in this ruling. 10 Michie Digest, p. 595, § 56, and authorities there cited.

The defendant excepted to the following part of the oral charge of the court:

"Under the plea of the general issue the defendant says that this accident was not caused by reason of any negligence on the part of this defendant, or any of its servants or agents, but that it was caused by reason of the negligence of the train crew of the Birmingham Belt Railroad Company, in and about the handling of that car of pipe which was there for the purpose of being switched out by them. Now the burden of proof is on the defendant to reasonably satisfy you of that defense, because that is pleaded under the general issue. That is one of the facts to which I call your attention under the plea of the general issue on which the defendant relies."

The defendant filed in writing one plea, and it pleaded general issue, with leave to give in evidence any matter which, if well pleaded, would be admissible in defense of the action to have effect as if so pleaded, and with like leave to plaintiff as to matters in reply thereto. The court in its general oral instruction to the jury clearly informed them under the general issue part of the plea that the burden was on the plaintiff to prove to their reasonable satisfaction the material averments of each and every count of his complaint. And in this part of the oral charge, excepted to, it is evident the court was instructing the jury that the defense claiming that the injuries were caused by the negligence of the train crew of the Birmingham Belt Railroad Company was on the defendant, which was permissible to be made under the general issue plea as filed. It is clear the court from the general charge as a whole informed the jury the general issue plea placed the burden of proof on the plaintiff to prove to their reasonable satisfaction the averments of the complaint, and the burden was on the defendant to prove the matters of special defense to the complaint permissible under the general issue plea, as filed, to their reasonable satisfaction. The oral charge must be construed in all of its parts as a whole, as applicable to the pleading and proof, and when so interpreted, if the law is correctly stated, it will not be held incorrect, if one part standing alone appears inaccurate. The oral charge as a whole is clear and correct, free from the error assigned. Sheffield Co. v. Harris, 183 Ala. 357, 61 So. 88; Southern Rwy. Co. v. Lynn, 128 Ala. 297, 29 So. 573. This general charge, considered as a whole, did not misplace the burden of proof. It is on the party holding the affirmative, the plaintiff, to prove the averments of the complaint and on the defendant to prove the special defense. Alexander v. Woodmen, 161 Ala. 561, 49 So. 883; Lucas v. Stonewall Ins. Co., 139 Ala. 487, 36 So. 40.

The defendant separately requested the court to give written charges numbered 1 and 4, and each was refused by the court. They are as follows:

"(1) Gentlemen of the jury, if you believe the evidence, your verdict cannot be for the plaintiff."

"(4) Gentlemen of the jury, your verdict cannot be for the plaintiff, unless from the evidence you are reasonably satisfied that there was no negligence by the railroad employés at the time of the accident which proximately contributed to plaintiff's injuries."

The parties in open court agreed "that at the time of the accident on which the suit was based the Birmingham Belt Railroad Company was engaged in interstate commerce, and that plaintiff was engaged in interstate commerce, and that his injuries arose while he was so engaged in interstate commerce."

The defendant loaded this car with pipes, which pipes were bell-shaped at one end. It was a gondola car. Four pieces of the pipe were resting on the car, with one end on the steel rod. The steel rods reached across the car at each end to keep it from spreading when loaded. This Belt Railroad Company would take these cars when loaded at defendant's plant and switch them over to the different railroads. This car was attached to a train of the Belt Railroad to be switched over to the Frisco, where it had been marked to go. The evidence...