Walker v. Woodward Iron Co.

• Decision Date: 06 June 1912
• Court: Alabama Supreme Court
• Parties: WALKER v. WOODWARD IRON CO.

59 So. 503

178 Ala. 584

WALKER v. WOODWARD IRON CO.

Supreme Court of Alabama

June 6, 1912

Rehearing Denied June 29, 1912.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Tillman C. Walker against the Woodward Iron Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Simpson Mayfield, and Sayre, JJ., dissenting.

Harsh Beddow & Fitts, of Birmingham, for appellant.

Cabaniss & Bowie, of Birmingham, for appellee.

MAYFIELD J.

A majority of the court are of the opinion that the jury could infer negligence on the part of Johnson in causing Atkins to move the crane by saying: "All right; that they were in the clear." It is true the witness said he did not know which one said this, Walker or Johnson; but Walker testified that he did not give the order or instruction, and the jury could infer that Johnson was the man who said: "All right; that they were in the clear." It was also a question for the jury as to whether or not this order caused Atkins to move the crane, as he said he proceeded to move the crane immediately after hearing this order. It was therefore a question for the jury as to whether or not the plaintiff proved the negligence charged in the first count of the complaint, and the trial court erred in giving the general charge for the defendant. It was also a question for the jury as to whether or not the plaintiff was guilty of contributory negligence.

Reversed and remanded.

DOWDELL, C.J., and ANDERSON, McCLELLAN, and SOMERVILLE, JJ., concur.

MAYFIELD J.

The dissenting views of the writer, which are concurred in by Justices SIMPSON and SAYRE, may be stated as follows:

The trial court properly instructed the jury to find a verdict for defendant. The burden of proof was upon plaintiff to show actionable negligence as alleged, which he wholly failed to do. The defendant offered no proof, because the plaintiff had failed to make out a prima facie case. There was an utter failure to prove either count of the complaint. The plaintiff and one other witness testified. While there was some conflict in their testimony, that of either separately, or of both together, failed to make out the case.

The first count sought to recover under the second subdivision of the Employers' Liability Act (Code 1907, § 3910), and relied upon the negligence of one Johnson, as superintendent. There was no proof of any negligence on his part, as alleged, or otherwise.

The second count relied upon the negligence of a superintendent, whose name was unknown. The plaintiff himself testified that he knew the names of all the persons present, or who had any connection with his injury. Moreover, there was no evidence which would fix liability on the defendant under this count.

The third count proceeded upon the theory of a defect in the ways, works, machinery, etc.

The fourth count was for failure to furnish a safe place in which to work.

There was no attempt to prove a case under either of these counts. A "safe place," as the term is used in speaking of the master's duty to the servant, is of relative signification. It does not mean a place at which no injury could possibly befall the servant. If the master furnishes the servant a place in which to work, as safe and free from danger as those which other masters of ordinary care furnish their servants engaged in like business and under like circumstances, he meets the requirements of his legal duty. The duty is limited to the care necessary to have the place reasonably safe for the purposes for which it was designed.

The place in question--an electric crane 30 feet from the ground--is not as safe a place as that of a clerk in a store, or that of a bookkeeper in a bank, or that of an ordinary laborer; but it is not a "dangerous place" in such sense as to make the master liable if the servant is injured. There was no evidence tending to show that the electric crane in question was defective, or that the place at which plaintiff was at work was any more dangerous than similar places of like businesses conducted under like conditions.

The fact that a servant is injured does not, as matter of law or of right, render the master liable. There must, in addition to this, be...