Williamson Iron Co. v. McQueen

• Decision Date: 17 February 1906
• Citation: 40 So. 306,144 Ala. 265
• Parties: WILLIAMSON IRON CO. v. MCQUEEN.
• Court: Alabama Supreme Court

40 So. 306

144 Ala. 265

WILLIAMSON IRON CO. v. MCQUEEN.

Supreme Court of Alabama

February 17, 1906

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Action by James W. McQueen, as administrator, against the Williamson Iron Company. From a judgment in favor of plaintiff defendant appeals. Affirmed.

The following written charges were given at the request of the plaintiff: "(2) Whether the bosh jacket was old or not if the jury believe from the evidence that it was reasonably sufficient for a furnance of that size, or that it appeared to Edwards in the exercise of reasonable care and diligence that the bosh jacket was reasonably sufficient, and that Edwards was a reasonably careful and prudent man, then he could not be charged with contributory negligence in reference to the bosh jacket, even if the jury should believe that greater strength in the bosh jacket would have prevented the death of Edwards. * * * (4) If the jury are reasonably satisfied from the evidence that either the first or second count of the complaint is true, then plaintiff's case is made out, and the age or condition of the bosh jacket or the weakness or strength of the furnace could not prevent a recovery by plaintiff, unless the jury should be reasonably satisfied from the evidence that Thomas J. Edwards was himself guilty of negligence which proximately helped to cause his own death. * * * (9) If the jury are reasonably satisfied from the evidence that any one witness willfully swore falsely in any material particular, then the jury may disregard the testimony of that witness entirely."

It was shown that the witness McCune had been engaged in and about the furnaces, in building, operating, and repairing them, for 35 years. Plaintiff propounded this question to him "From all you saw there, and from your expert knowledge from what you saw both before the accident and after the accident, would you not, or would you, say that that furnace before the accident was in good condition for operation?" Defendant objected to the question, and his objection was overruled. The witness answered: "From all I could have seen from looking at the furnace before it went into blast, I would have been perfectly satisfied to run the furnace." There was motion to exclude this answer, which was overruled.

The witness McQueen, after testifying to his knowledge of furnaces and his experience in operating them, was asked by plaintiff: "Did you on that day see material there which came from that furnace that was too large to be put into the furnace?" The defendant objected to the question, and the court overruled the objection. Defendant also objected to this question, propounded by plaintiff to witness: "In your judgment, was that of sufficient thickness for a furnace of that size?" The objection was overruled. The witness was also asked the further question, which was objected to by defendant: "Describe to the jury, not giving your opinion about the strength of the iron, but describe the condition of the iron. Had the iron crystallized when it was torn loose?"

James Weatherly, for appellant.

Bowman, Harsh & Beddow, for appellee.

DENSON J.

Action to recover damages for negligently causing the death of plaintiff's intestate. The complaint contained three counts, the third of which has been left out of view by the affirmative charge of the court for the defendant with respect to that count. The first and second counts were based upon subdivision 2 of the employer's liability act (Code 1896, § 1749). A demurrer to each of these counts was overruled by the court. After careful consideration of them we are constrained to hold, in line with the rule established by numerous decisions of this court, that the counts were not subject to the demurrers interposed, and the court committed no error in overruling them. Bessemer Land Co. v. Campbell, 121 Ala. 50, 25 So. 793, 77 Am. St. Rep. 17; Bear Creek Mill Co. v. Parker, 134 Ala. 293, 32 So. 700; A. G. S. Ry. Co. v. Davis, 119 Ala. 573, 24 So. 862; L. & N. R. Co. v. Jones, 130 Ala. 457, 30 So. 586; L. & N. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L. R. A. 620; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 244, 26 So. 349. The case was tried on the plea of the general issue and on two special pleas setting up contributory negligence on the part of the plaintiff's intestate. The trial resulted in a verdict and judgment for the plaintiff in the sum of $6,500, and the defendant appealed.

The deceased, Thomas J. Edwards, was a stockholder in the defendant company, and a member of its board of directors. He was also defendant's general manager in active control and management of its furnace. As such manager he employed all the servants worked by the defendant at its furnace, and had general superintendence over them. His death is alleged in the first and second counts to have occurred while he was in the service or employment of the defendant at or near the defendant's furnace. The cause of his death is alleged in this language: "The said furnace broke or gave way and a large quantity of molten or semimolten matter issued from said furnace as a proximate consequence of said breaking or giving way, and so badly burned plaintiff's intestate that he died as a proximate consequence thereof." The first count alleges that Daniel R. Monroe was in the service or employment of the defendant with superintendence intrusted to him, and the breaking or giving way of the furnace is ascribed to the negligence of Monroe while in the exercise of such superintendence. The second count is the same in its averments as the first, with the exception that the name of the employé to whom negligence is ascribed is alleged as being unknown to the plaintiff, and he is alleged to have had superintendence of the defendant's crew at or upon the top of said furnace. It is also alleged in the second count that the crew at the top was engaged in or about loading said furnace or putting material in it for the manufacture of pig iron. The evidence was without conflict that during the day the deceased had general superintendence over all the servants at the furnace; that at night he would go home leaving Monroe in general control and superintendence in his stead; that deceased would never return to the furnace during the night after leaving it in the evening, unless sent for on account of some accident to the furnace. During the night preceding the day on which his death occurred he was not at the furnace, nor was he sent for to go there. On the morning of the day he was killed he and his brother on arriving at the furnace discovered that there was something wrong with the furnace, it was choked, and they set about to discover what caused the choking, and while examining around the furnace there was a slip in the furnace which precipitated the load or burden with such force as to cause the molten iron to break through the "bosh jacket" of the furnace and overwhelm the deceased.

The plaintiff's contention on the trial was that a scaffold was formed in the furnace by feeding the furnace with too large sized material, or otherwise improperly loading the furnace, and that the scaffold fell against the "bosh jacket" with such tremendous force as to cause it to give way or break. It was contended that improper loading was negligently allowed by those having superintendence of the preparation of and loading the material that was put in the furnace during the night preceding the day on which the accident occurred.

It was shown without conflict in the evidence that, when the plaintiff's intestate left the furnace at night preceding the day on which he was killed, he left Daniel R. Monroe in general superintendence of the furnace. Monroe's duty was to look after everything that pertained to the running of the furnace at night the same as the deceased did during the day. The material that was put in the furnace was loaded from what was termed in the evidence a "stockhouse," into vehicles called "buggies," and the buggies were elevated to the top of the furnace, and there the material in the buggies was loaded into the furnace. Two men were stationed on the platform at the top of the furnace whose duty it was to load the material from the buggies as they were sent up, into the furnace. The evidence details the preparation that was made of the stock for loading it on the buggies. In the language of the witness Monroe: "The stock is dumped in all furnace stockhouses in great junks, and we beat it up, down, below before we put it in." The evidence showed that men were engaged in breaking the ore, or stock, with hammers preparatory to loading it on the buggies to be carried to the top of the furnace, and

the breaking was done as they needed the ore for loading the buggies. To see that the ore was broken in proper size for loading into the furnace, and that ore of too large size was not loaded on the buggies, the evidence showed that it was necessary to keep a man there all the time, whose duty it was to overlook and watch the employés as they broke the ore and loaded it on the buggies; it was also his duty to weigh the ore in the buggies. It was shown that Pat Crawford was intrusted with the special superintendence of the employés who were breaking and loading the ore the night preceding the day on which the accident occurred. There was also evidence which tended to show that Crawford had the special superintendence of the two men at the top of the furnace who unloaded the contents of the buggies into the furnace; and that, when a buggy loaded with material was sent to the top, it was the same as an order from Crawford to the men up there to put the load into the furnace. The evidence further tended to show that,...