Wilson v. Gulf States Steel Co.
| Decision Date | 21 October 1915 |
| Docket Number | 744 |
| Citation | 69 So. 921,194 Ala. 311 |
| Parties | WILSON v. GULF STATES STEEL CO. |
| Court | Alabama Supreme Court |
Rehearing Denied Nov. 18, 1915
Appeal from Circuit Court, Etowah County; J.E. Blackwood, Judge.
Action by H.T. Wilson, administrator, against the Gulf States Steel Company.
Judgment for defendant, and plaintiff appeals. Reversed and remanded.
The allegations of counts 1, 2, 3, and 4, and counts 5 and 14 sufficiently appear from the opinion. The following counts allege:
Plea 2 is as follows:
Plaintiff, at the time he received the injuries which resulted in his death, was operating said traveling crane on said track, and was engaged in unloading a car of coal with said crane; that as a part of said crane, and extending from it at an upward angle was a boom, on the upper end of which was suspended the bucket with which the coal was taken from said car and unloaded on the ground; that said boom swung around said crane, and it and the bucket were operated by machinery on said crane, intestate having control of the operation of said crane and machinery, operating said boom and bucket; that the proper way to operate said boom and bucket after it was filled with coal was to slowly and gradually swing it and bucket without causing it and the bucket to suddenly jerk the crane; that on the occasion when intestate received the injuries resulting in his death, in swinging said crane around after the bucket had been loaded he negligently swung it around with great force, and suddenly stopped it with a great jerk, and thereby causing said crane to tilt over and fall on said boom and intestate, inflicting the injuries resulting in his death.
Plea 3 is similar to plea 2, with the added allegation that intestate had been instructed, in the operation of said boom and bucket after the bucket had been filled with coal, to slowly and gradually swing the boom and bucket without causing them to suddenly jerk the crane, and warned not to swing the boom and bucket around with great force and suddenly stop them in such manner as to jerk the crane.
Bondurant & Smith, of Birmingham, and George D. Motley, of Gadsden, for appellant.
Hood & Murphree, of Gadsden, for appellee.
Plaintiff in the court below stated his cause of action in counts numbered from 1 to 18. Demurrers were sustained to counts 1 2, 3, 4, 5, 6, 7, 8, 14, 15, 16, and 18. The cause was submitted to the jury on counts 9, 10, 11, 12, 13, and 17. To these counts defendant filed three pleas, plea 1 being the general issue, and pleas 2 and 3 contributory negligence.
The first four assignments of error challenge the sustaining of the demurrer to counts 1, 2, 3, and 4. These counts were framed under the Employers' Liability Act (section 3910, subd. 1, Code of 1907). They were drawn to meet the several phrases of the evidence, using the expressions that said "track upon which said crane ran was defective," that "said track upon which said crane ran was defective, in that the ties were old, worn, and rotten, and the rails were old, worn, and out of plumb," that "the wheels upon which said traveling crane operated were old, worn, and out of plumb," etc., and that the "said bucket which was operated by means of said crane was defective." These counts were sufficient, on the authority of Little Cahaba Co. v. Gilbert, 178 Ala. 515, 59 So. 445; St. L. & S.F.R. Co. v. Phillips, 165 Ala. 504, 51 So. 638; Jackson Lumber Co. v. Cunningham, Adm'r, 141 Ala. 206, 37 So. 445.
By comparing these counts with amended counts 9, 11, 12, and 13 it will be seen that plaintiff had the same issues submitted to the jury as were sought to be set up in counts 1, 2, 3, and 4, to which demurrers were sustained. The cause will not be reversed for this ruling of the trial court, because it is clear that no injury resulted therefrom.
Counts 5 and 14 were drawn under subdivision 2 of section 3910 of the Code, and alleged that the injury "was proximately caused by reason of the negligence of some person in the service and employment of the defendant, who had superintendence intrusted to him, whose name is to the plaintiff unknown, and whilst in the exercise of such superintendence did negligently order plaintiff's intestate to operate said crane upon said track." This is substantially the language of the statute.
It is contended that these counts were demurrable, for that it was not shown that the superintendent had authority to give the alleged order to intestate, nor that the superintendent knew, or had reason to believe, that it would be dangerous to intestate to obey the alleged order.
The complaint was not subject to the demurrer directed to it. It was only necessary to allege the negligence of the defendant, and to prove that the defendant knew, or was in a position, by the exercise of a reasonably prudent care, to know, whether compliance with its order by the servant would involve danger. Little Cahaba Coal Co. v. Gilbert, supra; Republic Iron & Steel Co. v. Williams, 168 Ala. 612, 53 So. 76; Collier v. T.C.I. & R.R. Co., 155 Ala. 377, 46 So. 487; Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 192, 40 So. 280; Robinson Mining Co. v. Tolbert, 132 Ala. 462, 31 So. 519; T.C.I. & R.R. Co. v. Moore, 69 So. 540.
The sixth and fifteenth counts of the complaint were under the third subdivision of section 3910 of the Code, and were sufficient, tested by the decisions in Alabama Steel & Wire Company v. Tallant, 165 Ala. 521, 51...
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