Western Steel Car & Foundry Co. v. Cunningham

• Decision Date: 17 December 1908
• Citation: 48 So. 109,158 Ala. 369
• Parties: WESTERN STEEL CAR & FOUNDRY CO. v. CUNNINGHAM.
• Court: Alabama Supreme Court

48 So. 109

158 Ala. 369

WESTERN STEEL CAR & FOUNDRY CO. v. CUNNINGHAM.

Supreme Court of Alabama

December 17, 1908

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

Action by Sam Cunningham against the Western Steel Car & Foundry Company for damages, under subdivision 2, Employers' Liability Act (Code 1906, § 1749). From a judgment for plaintiff, the defendant appeals. Affirmed.

The facts are sufficiently set out in the opinion. The case was tried upon two counts, which are as follows: Count 2. Plaintiff claims of the defendant $1,999 damages, for that heretofore, to wit, on the 17th day of January, 1907 plaintiff was employed by the defendant as a laborer in a lumber yard in Anniston, Calhoun county, Ala., and while plaintiff was acting within the line and scope of his said employment a large quantity of lumber or timber, which was piled on a car or timber buggy used in defendant's said lumber yard, fell on, upon, or against the person of plaintiff, severely bruising and wounding plaintiff in and on the shoulder and head, so that his cheek was cut to the bone his eyes permanently injured, and his earning capacity greatly diminished. Wherefore plaintiff was kept out of work and was unable to work for a long time, suffered great physical and mental pain, and will continue to suffer great mental and physical pain, and has been rendered less able to earn a living; hence this suit. Said lumber fell on plaintiff and plaintiff was injured as aforesaid by reason and as a proximate consequence of the negligence of a person in the employment or service of the defendant, who had superintendence intrusted to him, whilst in the exercise of such superintendence, to wit, one Frank Rich, in the exercise of such superintendence, negligently caused or allowed said lumber or timber to fall from said car or buggy. Count 3. Same as count 2 down to and including the words, "hence this suit," where they first occur therein. Plaintiff was injured as aforesaid by reason and as a proximate consequence of the negligence of a person in the service or employment of defendant, who had superintendence intrusted to him, whilst in the exercise of such superintendence, to wit one Frank Rich, in the exercise of such superintendence negligently caused or allowed said lumber or timber buggy to be improperly or dangerously loaded with said lumber or timber, so that said lumber or timber fell and injured plaintiff as aforesaid. Demurrers were interposed as follows: To count 2: (1) It does not appear therefrom what superintendence said Rich was in the exercise of at the time of plaintiff's injury. (2) It does not appear how or wherein said Rich negligently caused or allowed said timber to fall from said car or lumber buggy. (3) The averments of negligence upon the part of said Rich are not sufficiently and definitely set forth. (4) The averments of negligence on the part of said Rich are too indefinite and uncertain. To count 3: It does not appear from said count what superintendence said Rich was in the exercise of at the time plaintiff was injured. (2) It does not appear how or wherein said Rich caused or allowed said car or timber buggy to be improperly and dangerously loaded with said lumber or timber. (3) The allegation of negligence of said Rich as set out in said count is too uncertain and indefinite to support a recovery.

The following charges were refused to the defendant. "(1) The court charges the jury that there is no evidence in this case that plaintiff was or is permanently injured. (2) If the jury believe the evidence, they must find for the defendant. (3) The court charges the jury that they must find for the defendant as to the second count of the complaint." (4) Same as 3 as to third count of complaint. "(5) The court charges the jury that, if they find that Sam Cunningham's negligence proximately contributed to his injuries, they must find for the defendant, even though defendant was guilty of negligence." With reference to the juror Burgess, the bill of exceptions recites: "The court permitted plaintiff, over defendant's objection and exception, to challenge the juror named Burgess, after plaintiff expressed himself as satisfied, and after defendant expressed itself as satisfied with him and the jury, because subsequently and before the jury was completed it was learned, and Burgess admitted, that he had been discharged, but expected to go back to work for the defendant again." The sixth assignment of error is that the court erred in overruling the defendant's objection to the question propounded to Henry Smart by plaintiff: "When the car is loaded with lumber, and lumber is projecting over each side of the car, what is the usual and ordinary way to latch and unlatch the table?" The question is misquoted, in that it assumed that the lumber projected over the ends instead of the sides of the car, and all the testimony tended to show that it was loaded so that it projected over the ends and not the sides of the car. The grounds for new trial were the same as assigned as error and treated in the opinion.

Willett & Willett, for appellant.

Matthews & Matthews, for appellee.

DENSON J.

The complaint contained four counts, but the first and fourth are not here for review, the trial court having eliminated them by charges given at the request of the defendant.

The second and third counts are predicated upon the second subdivision of the employer's liability statute (section 1749, Code of 1896), which provides: "When the injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has any superintendence intrusted to him, whilst in the exercise of such superintendence, the master shall be liable to answer in damages." Demurrers to these counts, proceeding upon the theory of generality of averment as to the superintendence intrusted to the person named, and upon the further theory that the counts state only conclusions, were overruled. By appropriate assignments of error, the judgment of the court on the demurrers is presented for review.

Tested by the numerous decisions of this court, it is obvious that the counts are sufficient, and that the demurrers were properly overruled. Williamson Iron Co. v. McQueen, Adm'r, 144 Ala. 265, 40 So. 306, and cases there cited.

The plaintiff, as an employé of the defendant, with five others of defendant's servants, was on the 17th day of January 1907, engaged in loading lumber on a "lumber buggy" or tram car and moving it, on the car, from one part of defendant's yard to another, all under the supervision of Frank Rich, defendant's superintendent. The car stood on a standard-gauge track, the sides projecting slightly over the track, and was 5 or 6 feet long, and the floor was 2 or 2 1/2 feet above the track. Said lumber consisted of pieces 3 1/4X4 or 3 1/4X5 inches, 16 feet long, and these were being loaded onto the car lengthwise, in tiers, and over the entire width of the car. The testimony as to the height to which the lumber was thus stacked on the car varied the height from 2 feet to 4 feet. After being loaded, the car was rolled onto a turntable to be shifted to another track. The turntable was made fast by a latch which fitted into a slot. After the car was placed on the table, the superintendent would command the servant in position nearest to the latch to unlatch the table. On this occasion the command was given to the plaintiff, and in obeying it he got upon his knees, in a "crouching position," lifted the latch and held it in his hand, and followed the table, as it turned, until it was brought into position from which the car might be run onto the track designated by the superintendent, when plaintiff (as the...