Woodward Iron Co. v. Curl

• Decision Date: 21 November 1907
• Citation: 153 Ala. 215,44 So. 969
• Parties: WOODWARD IRON CO. v. CURL.
• Court: Alabama Supreme Court

44 So. 969

153 Ala. 215

WOODWARD IRON CO. v. CURL.

Supreme Court of Alabama

November 21, 1907

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by Clinton Curl, pro ami, against the Woodward Iron Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The original complaint contained 11 counts to which was added by way of amendment counts 12 to 18, inclusive. Demurrers were sustained to counts 1, 5, 11, 12, and 14. Count 2 is as follows: "The plaintiff, Clinton Curl, who is a minor under the age of 21 years, and who sues by his next friend I. S. Curl, claims of the defendant, the Woodward Iron Company, a corporation, the sum of $10,000 damages, for that on, to wit, the 14th day of March, 1905, the plaintiff was in the employ of the defendant, which was engaged in the business of mining ore in Jefferson county, Alabama, and while so in the employ of the defendant the plaintiff was injured by certain cars of the defendant running upon or against him, and as a proximate consequence thereof plaintiff's leg was broken, bruised, mashed, and mangled and his arms and body were bruised and injured, and he lost valuable time, and incurred large doctor's bills and bills for nurse hire, and suffered great pain, both physical and mental, and his injuries are permanent; and plaintiff alleges that it was the duty of the defendant to provide servants of reasonable skill and experience to superintend said service in which plaintiff was engaged at the time of his injuries; and plaintiff alleges that it was negligent, in that it failed to provide servants of reasonable skill and experience in and about the doing and supervising of the services in which plaintiff was engaged, and as a proximate consequence of such negligence plaintiff was injured as aforesaid." Count 3: Same as count 2, down to and including the words "and his injuries are permanent," and adds: "And plaintiff alleges that his said injuries are caused by reason of a defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the defendant, in that said defendant negligently failed to furnish sprags, or negligently failed to furnish sprags which were reasonably fit and serviceable for the purposes for which they were intended, and as a proximate consequence thereof a certain car in charge or in control of defendant's servants was allowed to run upon or against plaintiff, injuring him as aforesaid. The plaintiff alleges that the defect above mentioned arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service of the defendant and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition." Count 4: Same as count 3, except the defect is alleged to have consisted in the cars not being supplied with brakes or appliances for checking their speed or stopping them while going down grade. Count 6: Same as count 2, except the allegation of negligence is alleged to be in the failure to provide a sufficient number of servants to conduct his work in a reasonably safe manner, and as a proximate result certain cars used by defendant in this business ran violently down grade and upon defendant, etc. Count 7 alleges that defendant was engaging in the business of mining ore in Jefferson county, Ala., and in and about the operation of said mine and in connection therewith the defendant operated cars over lines of railway, and while plaintiff was crossing said lines of railway the defendant or its agents or servants, so negligently conducted said business that one of the cars ran upon or against plaintiff etc. Count 8 alleges the operation of tram cars over lines of railway, and that on said day plaintiff had occasion to cross said lines of railway, and while doing so defendant negligently allowed or caused one of its cars, etc. Count 9 alleges the operation of railways in connection with the mines, and describes how cars were operated on said line, and the method of sprag in use to stop them; that plaintiff was accustomed to cross the track often at said place to reach his work, which was known to defendant; and that while plaintiff was in the act of crossing said track the cars were turned loose and allowed to run swiftly down grade without means of stopping or checking their speed, whereby plaintiff was injured by being struck, etc. This count also alleges the failure to give any warning or signal of the approach of the cars. The tenth count charges negligence to the superintendent while in the exercise of such superintendence, to wit, one Ellis, who was in charge of the car. The eleventh count lays the negligence to C. F. Evans, yard foreman or tally boss, a person in the employment of defendant, to whose orders or direction plaintiff was bound to conform and did conform. Count 12, after alleging the allegations of injury and employment as alleged in the other counts, alleges the duty on defendant to employ servants of reasonable skill and experience as co-servants of plaintiff in and about its operation of said business, and a failure to do so, which failure was known to defendant, or could have been known by the exercise of reasonable diligence and care, and as a proximate consequence, etc. Count 13 is practically the same as count 12. The fifteenth count is the same as the twelfth and thirteenth, with the allegation that plaintiff does not know the name or names of the persons employed by the defendant to superintend its said business. Count 16 alleges the operation by defendant of lines of railway; the fact that plaintiff was at defendant's mining plant by defendant's invitation, instance or request; defendant's duty to so operate its business in such reasonably safe way as not to injure plaintiff; its failure to do so; and as a proximate result of the cars striking him by reason of said failure he was injured, etc. The seventeenth count is the same as the sixteenth, except it goes a little more into detail as to how the cars were permitted to run down the track. Count 18: Same as count 16, except the negligence is averred to consist in a failure to see to it that there were a sufficient number of servants in charge of said car to prevent the same from running upon or against plaintiff. The grounds of demurrer are sufficiently set out in the opinion, as are the other facts necessary to an understanding of it.

Tillman, Grubb, Bradley & Morrow, for appellant.

T. T. Huey and Ward & Ward, for appellee.

DENSON J.

This is an action to recover damages for a personal injury sustained by the plaintiff while an employé of the defendant as a blacksmith at defendant's mines. The complaint originally contained 11 counts, and 7 were added by amendments. Demurrers were sustained to the first, fifth, eleventh, twelfth, and fourteenth counts; and, as the appeal is taken by the defendant, these counts are not here for review. The grounds in the assignment of errors are numerous, and we find that it is necessary, under wellsettled principles of law, to sustain a number of them, and a reversal of the cause will be ordered. Nevertheless, as another trial will probably follow on the remandment of the cause, it is our duty to notice the grounds of error insisted upon in the brief of appellant's counsel.

Of the counts in the complaint to which demurrers were overruled the second, sixth, seventh, eighth, thirteenth, fifteenth, sixteenth, seventeenth, and eighteenth rely for recovery on the negligence of the defendant company, and are not based on the employer's statute. The third, fourth, ninth, and tenth counts are predicated upon the employer's statute. Code 1896, § 1749. It must be conceded that an averment that plaintiff was injured while in the employment of the defendant falls short of showing that he was in the discharge of any duty imposed upon him by his employment at the time of his injury. This is the extent of the averments in this respect in the first paragraph of the second count, in which the injury, the circumstances attending it, and the relations of the parties are alleged. In the second paragraph of that count it is alleged: "It was the duty of the defendant to provide servants of reasonable skill and experience to superintend the services in which the plaintiff was engaged at the time of his injuries; and plaintiff avers that it was negligent, in that it failed to provide servants of reasonable skill and experience in and about the doing and supervising of the services in which plaintiff was engaged, and as a proximate consequence of such negligence, plaintiff was injured as aforesaid." Construing the count most strongly against the plaintiff, we feel that we are authorized to conclude that the services in which he was engaged at the time of his injury were not within the scope of his employment--not such as he was employed to perform; so that, if the count shows that the plaintiff was, at the time the injury occurred, engaged in the discharge of duties imposed upon him by his contract of employment, it does so only inferentially. Essential facts of this character should not be left to inference and conjecture in a complaint. The court, therefore, erred in overruling the demurrer which points out this defect in the second count. Sloss-Sheffield Steel & Iron Co. v. Mobley, Adm'r, etc., 139 Ala. 425, 36 So. 181; Virginia Bridge Co. v. Jordan, 143 Ala. 603, 42 So. 73. On the same considerations, the demurrer pointing out the same defect in counts 3, 4, 6, 9, and 10 should have been sustained, and the court committed reversible error in not sustaining it. Moreover, the ninth and tenth counts fail to show any necessity for the plaintiff to cross the track at the time and place alleged. ...