Western Steel Car & Foundry Co. v. Bean

• Decision Date: 18 November 1909
• Citation: 163 Ala. 255,50 So. 1012
• Parties: WESTERN STEEL CAR & FOUNDRY CO. v. BEAN.
• Court: Alabama Supreme Court

50 So. 1012

163 Ala. 255

WESTERN STEEL CAR & FOUNDRY CO. v. BEAN.

Supreme Court of Alabama

November 18, 1909

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by W. J. Bean against the Western Steel Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Willett & Willett, for appellant.

Tate &amp Walker, for appellee.

MAYFIELD J.

Appellee was a servant of appellant, and sues to recover damages for personal injuries. The complaint contained four counts, but demurrers were sustained to the second and third, and no question is raised as to the pleadings; hence these counts need not be noticed.

The first count was clearly under the first subdivision of the employer's liability act (Code 1907, § 3910), and the fourth probably sought to recover on the common-law liability of the master to furnish the servant a safe place in which to work, though it contains some averments necessary to state a cause of action under the first subdivision of the employer's act. The gravamen of the action, in both counts, is that a certain plank in a platform, or gangway used by the master in connection with his business, was warped, and would not on that account lie in its proper position; that in consequence of its being warped it was loose, and would move or rock about, and was unstable.

To these counts defendant pleaded the general issue, and special pleas setting up contributory negligence and assumption of risk by the plaintiff. The trial was had upon all these issues, which resulted in a judgment for plaintiff in the sum of $1,600. From this judgment the defendant appeals, and assigns various errors, which will be treated separately so far as practicable and necessary.

The plaintiff, at the time of the injury, was at work for defendant as its servant in and about its foundry, and while so employed he was directed, or it became his duty, to ascend a ladder to the platform, about 30 feet high, for the purpose of closing a valve, thereby cutting off the steam from a hammer, which was being operated by the defendant company. After he had cut off the steam, he started back to the ladder to descend; but before reaching the top of the ladder he stepped upon a plank which was warped, and on that account not stable, and it, not being fastened, turned with him as he stepped upon it, and threw him to the ground or floor, a distance of about 30 feet thereby injuring him. There was some conflict in the evidence as to whether this plank was a part of the scaffold, or whether it was merely a loose plank left on the scaffold. The scaffold was used for the servants to stand upon, and to approach the valve in question for the purpose of turning on or cutting off the steam from the hammer.

It is insisted by appellant that the court should have given the general affirmative charge for defendant, or have excluded plaintiff's, upon the theory that plaintiff's evidence did not show that the alleged defect, or warped plank, complained of, was a part of the ways, works, and machinery. There can be no doubt that the platform was a part of the ways, works, or machinery of defendant's plant, and the evidence, to say most of it in defendant's favor, was in conflict as to whether the plank was a part thereof, or was merely a loose plank left thereon. Virginia Bridge & Iron Co. v. Jordan, 143 Ala. 603, 42 So. 73; Buzzell v. Laconia Co., 77 Am. Dec. 212; Weir's Case, 96 Ala. 396, 11 So. 436; Tuscaloosa Waterworks Co. v. Herren, 131 Ala. 81, 31 So. 444; s. c. (second appeal) 40 So. 55; Walch's Case, 132 Ala. 490, 31 So. 470.

The questions propounded to the witnesses Foster, West, and Matthews, for the purpose of showing the number of steam pipes, and boilers, and other surroundings, at the place at time of plaintiff's injury, whether it was hot, cold, or pleasant at the valve at the time of the injury, whether there was much steam or vapor present on the occasion of the injury, whether one could see distinctly at the time and place of the injury, were all proper and free from objections, and the answers to such questions were likewise proper, relevant, and admissible, and hence the court properly declined to exclude them. The defendant had pleaded contributory negligence, in that plaintiff failed to observe the dangerous conditions alleged to have caused the injury; that he remained upon the scaffold too long, that he stepped upon a warped plank when there was a smooth and level one, which was fastened, upon which he could have stepped and avoided the injury; that he negligently fell off the scaffold; that he negligently made a misstep, or did something else of like character; that he became dizzy while upon the scaffold, and in consequence thereof fell off. Hence all the evidence was proper, relevant, and material, to show the condition of the plank, with the attendant circumstances proper for the jury to consider in determining the questions and issues thus raised by the pleadings, and to show whether or not plaintiff was guilty of contributory negligence which proximately contributed to his injury. Under some conditions he might have been guilty of contributory negligence, and under others not.

This evidence all tended to prove or disprove the issues on the trial; hence it was relevant, if it tended to do either. If the place was enveloped in steam escaping from the pipes or boilers, the steam would obstruct the plaintiff's vision; and if it was very hot at this point, on account of these pipes and boilers, such fact might impose a greater duty on the master to provide a safe platform--one that would be safe under these existing conditions; for, if there was no smoke or steam present, the plaintiff might have observed the warped plank and have avoided it. For aught we can know from this record, the jury might have properly found the plaintiff to have been guilty of contributory negligence, but for this evidence; and as a matter of fact and truth he might have avoided the injury, but for the surrounding circumstances which prevented his being able to avoid stepping on the defective plank which threw him. The jury could not have correctly determined the issues raised by the defendant itself, without evidence of these conditions which surrounded and attended the plaintiff at the time and place of the injury. A part of appellant's evidence, on the direct examination of its own witnesses and by the cross-examination of the defendant's witnesses, was evidence intended to show that it was light at the time and place of the injury, and that plaintiff could or ought to have observed the warped plank, and have avoided it. Consequently the evidence in question was clearly relevant and proper in rebuttal of defendant's evidence tending to prove its pleas; but, as we have shown above, it was proper as original evidence on the part of plaintiff to disprove or avoid the defendant's pleas of contributory negligence.

Whatever is, or might have been, the rule of evidence in other countries and states as to the admissibility, relevancy, and competency of declarations and exclamations of a person injured, indicative or expressive of pain and suffering, in actions to recover damages, the rule is firmly settled in this state, by a long line of decisions, extending from the case of Phillips v. Kelly, 29 Ala. 628, down to, and probably beyond, Matthews' Case, 142 Ala. 311, 39 So 207. The rule does not limit such declarations to those uttered at or very near the time of the injury, which could be said to be a part of the res gestæ; but it is extended to those made several months, and even years, after the injury, and even to those made after suit is brought. They are admitted upon the ground of necessity, and are probably the best mode, and sometimes might be the only mode, of determining whether...