U.S. Rolling Stock Co. v. Weir

• Citation: 11 So. 436,96 Ala. 396
• Parties: UNITED STATES ROLLING STOCK CO. v. WEIR.
• Decision Date: 27 July 1892
• Court: Supreme Court of Alabama

11 So. 436

96 Ala. 396

UNITED STATES ROLLING STOCK CO. v. WEIR.

Supreme Court of Alabama

July 27, 1892

Appeal from city court of Anniston; B. F. CASSADY, Judge.

Action by Annie Weir, administratrix, against the United States Rolling Stock Company. Judgment for plaintiff, and defendant appeals. Reversed.

Plaintiff as the administratrix of Charles V. Weir, deceased, sought to recover damages for injuries inflicted upon said Charles Weir, an employe of the defendant, while in the discharge of his duties, which injuries resulted in his death. The complaint alleged that the said C. V. Weir, deceased, was in the service of the defendant as a night watchman at their works; that it was a part of his duty as such watchman to take care of a certain pipe which ran to the boilers in said works, and to see that no steam should be wasted through such pipe during the night; that, though the fact was unknown to the plaintiff's intestate, "the said pipe and its connections with such boiler were so very defective in their condition as to be dangerous, which fact was well known to the officers and agents of said defendant in charge of said work, but unknown to the said Weir;" that said pipe was situated under the roof of a large building of the defendant and was about 30 feet from the ground of the said building that the defendant, for the purpose of supplying a way for the said Weir to reach said pipe and stop the escape of steam, had laid a narrow plank about 8 inches broad over the rafters of said building, along which plank the said Weir had to walk in order to stop the escape of steam; and that while said Weir was engaged in his duty as watchman, in the nighttime, he attempted to stop the escape of the steam which had commenced to escape, owing to the defective condition of the said pipe, and, while on the meager foothold furnished by the plank, the valve exploded, and said Weir was hurled to the ground, and sustained injuries which resulted in his death. The complaint then alleged that the defects in the ways, works, and machinery of the defendant, which caused plaintiff's death, arose from, or had not been discovered owing to, the negligence of the defendant, or those persons connected with the defendant, intrusted with the duty of seeing that the ways, works, machinery, or plant of defendant were in proper condition. The defendant demurred to the complaint on the ground that it did not show that the death of the plaintiff's intestate was caused by reason of any defect in the ways, works, machinery, or plant used in the business of the defendant; that the complaint failed to set forth any defective condition in the ways, works, machinery or plant of the defendant; that the complaint failed to set forth or show any act or negligence on the part of the defendant, or any of its officers; and that it does not appear from the complaint that the plaintiff is entitled to recover, under section 2590 of the Code. These demurrers were overruled. The other rulings of the court upon the pleadings are sufficiently stated in the opinion. The bill of exceptions recites: "While the plaintiff was challenging jurors, the counsel for plaintiff stated to the court that he was informed that one of the jurors in the panel had been approached in reference to this case, and had had conversations about same with plaintiff and one of her friends, and asked that that juror be not put upon the plaintiff. In answer to said statement the juror arose and asked to be excused from sitting on this case, because he had been approached, he said, by one of plaintiff's friends during the court, who said to him that the Rolling Stock Co. were trying to beat plaintiff out of her money, and the jury ought to give her a good verdict; and also that he had a similar conversation with plaintiff. The court then for this reason excused this juror from sitting on this case, against defendant's objections, and defendant then and there excepted to said action of the court in excusing said juror. The plaintiff then exhausted all her challenges, but the juror excused as aforesaid was not challenged by the plaintiff, but excused at his own request, as aforesaid." The evidence for the plaintiff tended to support the cause of action as set forth in the complaint, while the evidence for the defendant tended to show that the duty of the plaintiff's intestate as a watchman for the defendant did not require him to stop the escape of the steam. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the following written charges: "(1) The burden is on the defendant to prove the plea of contributory negligence on the part of Charles Weir." (2) "If the jury believe from the evidence that a defect or defects existed in the ways, works, machinery, or plant of defendant, which caused the death of plaintiff's intestate, and such defect or defects were so obvious that a reasonably cautious and careful person should have found out such defect or defects, then the defendant is charged with the knowledge of the same." (3) "If the jury believe from the evidence that Charles Weir sustained the injuries which resulted in his death by reason of any defect in the ways, works, machinery, or plant of defendant while performing the duties imposed upon him by his employment, which defects were known to defendant or its officers or agents in charge of such ways, works, machinery, or plant, or which it, or they, should have known by the exercise of ordinary care of such defendant, or its officers or agents in charge, then they must find for the plaintiff." The defendant separately excepted to the giving of each of these charges, and also excepted to the court's refusal to give the general affirmative charge in its behalf.

J. J. Willett, for appellant.

McDonald & Williams, for appellee.

STONE C.J.

The city court did not err in overruling defendant's demurrer to the complaint. As we understand the pleader, the principal defect complained of was the narrow plank,-the "way" by which the defective and leaking pipe was to be...