Virginia Bridge & Iron Co. v. Jordan

• Decision Date: 07 June 1905
• Citation: 143 Ala. 603,42 So. 73
• Court: Alabama Supreme Court
• Parties: VIRGINIA BRIDGE & IRON CO. v. JORDAN.

42 So. 73

143 Ala. 603

VIRGINIA BRIDGE & IRON CO. v. JORDAN.

Supreme Court of Alabama

June 7, 1905

Appeal from Circuit Court, Shelby County; A. H. Alston, Judge.

"To be officially reported."

Action by Arthur Jordan against the Virginia Bridge & Iron Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint contained four counts, but as to the first and third counts the general affirmative charge was given for the defendant. The second count was as follows: "The plaintiff claims of defendant twenty-five hundred dollars for that on and prior to the 5th day of December, 1902, the plaintiff was in the employment of defendant, and as such employé was serving the defendant as a bridge laborer, and defendant was engaged in constructing the bridge across the Cahaba river in said county, and it was necessary for the plaintiff in doing his work for defendant to get upon a trestle, and to pass over the same, and there was a plank, or timber, which connected the two parts of the trestle, where the plaintiff was working, and the said plank or timber was placed loosely upon said trestle, and the plaintiff was passing over or along said plank or timber, and the said plank toppled over, which caused the plaintiff to be thrown to the ground, breaking his arm and some of his ribs, and injuring his back and spine, and permanently disabling him. By reason of said injuries the plaintiff has suffered great physical pain and mental torture, and has been permanently disabled, and has been put to large expense in the way of medicine, medical attention, and nursing--all to his damage twenty-five hundred dollars as aforesaid; hence this suit. And the plaintiff avers that his injuries were caused by reason of the negligence of said Robertson or Robinson (whose Christain name is to plaintiff unknown), who had superintendence intrusted to him, and while in the exercise of such superintendence; the negligence of superintendent consisting of this: That he knew, or by the exercise of reasonable care would have known, that said plank or timber was not securely fastened, or was not long enough to reach from one part of the trestle to the other, and that it was necessary for the plaintiff to pass over said trestle, and that plaintiff or other employés of defendant were liable to step upon said plank in the prosecution of his work, or in going to the place where he was to work, yet the said superintendent negligently failed to have said timber properly fastened, and the plaintiff's injuries were caused by reason of said plank or timber not being securely fastened, all to plaintiff's damage as aforesaid." The fourth count was as follows: "And for a fourth count of the complaint the plaintiff adopts the language of the first count as amended down to and including the words 'hence this suit' (which is exactly like the second count as above set out down to and including the words 'hence this suit'), and adds thereto the following And the plaintiff avers that it was the duty of the defendant to provide a reasonably safe place for the plaintiff to work upon said trestle and a reasonably safe way for the plaintiff to pass and repass in going to and from his work; but plaintiff avers that the defendant negligently permitted a plank or timber connecting two parts of the trestle where plaintiff was working to be loose and unstable, and the plaintiff fell and sustained his injuries by reason of said plank not being securely fastened, and in consequence of said fall he sustained injuries as herein above set out." Demurrers were interposed to each of above counts, raising the question that it does not appear from the averments of the counts that, at the time plaintiff received the injuries complained of, he was doing any work for or in the employ of the defendant, or in the prosecution of or in the performance of any work for the defendant. The demurrers were overruled. The defendant then interposed the plea of the "general issue," and filed a number of special pleas setting up the defense of contributory negligence on the part of the plaintiff, and also pleas setting up that at the time of injury plaintiff was not engaged in any work for defendant nor was he at that time under the control or direction of any agent of defendant. A demurrer to the last-mentioned plea--that it failed to deny that plaintiff was on defendant's premises on his way to work--was sustained. A recital in the judgment entry shows that the other special pleas were overruled by the court.

The proof showed that the plaintiff was a boy about 18 years of age, and that on and prior to the 5th of December, 1902, he was engaged as a laborer on and about a certain bridge which the defendant was erecting over the Cahaba river, in Shelby county, Ala., and there were other workmen engaged upon and about the bridge work; that in going to and from work it was necessary for the workmen to cross over said bridge, and this applied to the plaintiff as well as the other workmen; that during the progress of the work upon the bridge a portion of the flooring had been taken up, which left only the lateral stringers, one on each side of the bridge, for the passage of the workmen to and from their work; that the day before the plaintiff's injuries a scantling six inches wide and two inches thick was by order of the superintendent laid alongside one of the stringers, one end resting against the cross-beam, but apparently upon it, while there was other testimony that the scantling was not lying along the stringers; that on the morning of December 6, 1902, the plaintiff and one John Ward, another employé of defendant were crossing the bridge, John Ward being on one side and the plaintiff on another, the latter being on the stringer along which the scantling was laid; that the plaintiff, in proceeding along the stringer, saw the scantling lying by the side thereof, and appearing to be resting upon the cross-beam, and plaintiff stepped upon it and fell to the ground, a distance of 42 feet, the fall greatly mangling and injuring him, causing him great pain and suffering, and permanently disabling him; that among other injuries was a hole in his back nearly as large as a man's fist, and this it was that probably caused the disease of his kidneys which rendered his life miserable and worthless. The proof further tended to show that it was reasonably safe for workmen to pass along said stringers in crossing the opening in the bridge, though the witness John Ward stated that in crossing he would hold to the side of the bridge on account of a swimming in his head; and there was further proof that in addition to the stringers, there had been made a plank walk three feet wide by the defendant's superintendent for the workmen to walk upon and roll barrows along, but the testimony of the plaintiff tended to show that this was untrue. One of the defendant's witnesses testified that the scantling was placed on the bridge by order of the defendant's superintendent in charge of the work, but that he cautioned all the workmen not to step upon it; but the plaintiff's witnesses, including the plaintiff himself, testified that they heard no such admonition from the superintendent. The defendant introduced testimony tending to show that, while the plaintiff was lying on the ground in almost mortal agony, the defendant's superintendent said to him, "I hope you do not blame the company for your injuries," and the plaintiff replied "No; it is all my fault." But this was flatly denied by the plaintiff. The testimony for the plaintiff tended to show that his duties required him to be partly on the bridge and partly on the ground at the east end, in which direction he was going to his work at the time...