Opinion
6 Div. 12.
October 28, 1920.
Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.
Percy, Benners Burr, and Salem Ford, all of Birmingham, for appellant.
The defect must be pointed out with definiteness in a count charging defect of ways, etc. 122 Ala. 118, 26 So. 124; 164 Ala. 125, 51 So. 397, 137 Am. St. Rep. 31; 171 Ala. 251, 55 So. 170; 183 Ala. 310, 62 So. 804; 203 Ala. 78, 82 So. 92. Where there is a defect, and the employee has knowledge of the defect and the dangers, he is guilty of contributory negligence if he continues to expose himself to the defect. 80 Ala. 123; 81 Ala. 200, 8 So. 216, 60 Am. Rep. 152; 99 Ala. 359, 13 So. 8, 20 L.R.A. 457; 105 Ala. 368, 17 So. 29, 53 Am. St. Rep. 127; 152 Ala. 191, 44 So. 652; 164 Ala. 49, 51 So. 169; 6 Ala. App. 448, 60 So. 475; 110 Miss. 214, 70 So. 246; 203 Ala. 82, 82 So. 96. An employer may leave something to the intelligence of the servant and the exercise of self-preservation. 171 Ala. 212, 55 So. 139; 192 Ala. 651, 68 So. 1008; 183 Ala. 310, 62 So. 804. Where a servant voluntarily continues in the service and exposes himself to added danger on account of increase in wages, he cannot recover. 164 Ala. 33, 51 So. 169. A servant cannot hold the master liable for overstraining his muscles or overtaxing himself, as he must be the judge of this. 106 Tenn. 236, 61 S.W. 53; 158 Ind. 634, 64 N.E. 217; 99 Ga. 283, 25 S.E. 646; 108 Minn. 199, 121 N.W. 903, 25 L.R.A. (N.S.) 362, 17 Ann. Cas. 240; 192 Ala. 364, 68 So. 274, L.R.A. 1915E, 369.
David J. Davis and Black Harris, all of Birmingham, for appellee.
The hoisting apparatus of a device was defective. 97 Ala. 240, 12 So. 88; 165 Mass. 202, 43 N.E. 85. Count A was not subject to the demurrer interposed. 150 Ala. 368, 43 So. 348; 178 Ala. 521, 59 So. 445; 191 Ala. 444, 67 So. 608; 141 Ala. 213, 37 So. 445; 76 So. 928. The servant was not guilty of contributory negligence from the facts in this case. 200 Ala. 308, 76 So. 74; 199 Ala. 231, 74 So. 360; 191 Ala. 444, 67 So. 608. Counsel discuss the charges given and refused.
Although the juror Kerr had not been summoned, yet plaintiff announced that he wanted to use him as an expert witness, and he was in fact so used. The court, mindful of its duty to see that trials are impartially had (Underwood v. State, 179 Ala. 9, 60 So. 842), excused the juror from the list of those from which the jury was to be selected, and we are of the opinion this was but the exercise of a wise and prudent discretion of which the defendant cannot complain.
It is next insisted count A was subject to demurrer, in that the averment of the defect in the ways, works, or machinery of the defendant's plant is too general, and much reliance is had upon the case of T. C. I. R. R. Co. v. Smith, 171 Ala. 251, 55 So. 170, wherein it was held that the following description was insufficient: "In that said mine entry was in a defective and unsafe condition." That case is easily distinguishable from the instant case, for, as pointed out in the opinion, the complaint disclosed that there were several mine entries. Here, it does not appear there was more than one hoisting apparatus, and we are of the opinion that this description was sufficiently definite to direct the defendant's attention to that part of its plant or machinery as to which plaintiff complains, and sufficiently meets the requirements of pleading under the authorities of Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 So. 445; West Pratt Coal Co. v. Andrews, 150 Ala. 368, 43 So. 348. See, also, Little Cahaba Coal Co. v. Gilbert, 178 Ala. 515, 59 So. 445; Standard Portland Cement Co. v. Thompson, 191 Ala. 444, 67 So. 608; Caldwell v. Watson, 183 Ala. 326, 62 So. 859. The case of Woodward Iron Co. v. Marbut, 183 Ala. 310, 62 So. 804, cited by appellant's counsel, is not here directly in point, but we have reached the conclusion that the count here in question meets the general requirements of pleading there laid down.
There are many distinguishing features between the instant case and what was said in the original opinion in Shelby Iron Co. v. Bean, 82 So. 92, but this latter case is not to be used as an authority upon this point, as will appear from an examination of the opinion rendered on rehearing when the court reached the conclusion that the action of the trial court in overruling the demurrer to the complaint could not be reviewed in the condition of the transcript as there presented.
It is further insisted that defendant was entitled to the affirmative charge on account of plaintiff's contributory negligence, upon the doctrine of volenti non fit injuria, and a number of decisions are cited, including A. G. S. R. R. Co. v. Flinn, 199 Ala. 177, 74 So. 246; Sou. Cotton Oil Co. v. Walker, 164 Ala. 33, 51 So. 169; S. S. S. I. Co. v. White, 203 Ala. 82, 82 So. 96; L. N. R. R. Co. v. Sharpe, 171 Ala. 212, 55 So. 139, and S. S. S. I. Co. v. Reid, 191 Ala. 628, 68 So. 136. We have carefully examined these authorities, and find nothing in them which would justify the affirmative charge for the defendant in the instant case, under the facts as here presented; and to mark out the distinguishing features would extend the opinion unnecessarily. Suffice it to say in the case before us the evidence tends to show that plaintiff at the time he sustained his injuries was in the discharge of his duties with his left hand upon the controller and his right hand upon the brake, all of which was necessary in the operation of this hoisting apparatus. He knew of the defective operation of this appliance; had complained to the superintendent in regard thereto, and had received promises that it would be remedied, and thereupon continued in the service for some months thereafter. There was nothing to show that it was his duty to remedy this defect, or that he had been guilty of any negligent conduct in respect thereto. Merely continuing in the employment of defendant under these circumstances would not give rise to the doctrine of contributory negligence or the assumption of risk on his part. S. S. S. I. Co. v. White, supra; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604.
The evidence for the plaintiff tended to show that on account of the manner of the operation of this appliance, plaintiff was under some strain, but not sufficient to be noticeable during the time of his operation of the apparatus. On the other hand, the evidence for the defendant tended to show that the operation of the hoisting apparatus did not produce any appreciable strain upon the body. The jury could therefore infer from the evidence that plaintiff was not cognizant that he was in any imminent or impending danger of being ruptured or suffering bodily harm from the operation of this appliance. The jury could also infer that while the plaintiff was standing in this somewhat strained position the machine gave a jerk which resulted in the injuries sustained.
Counsel for appellant place particular stress upon S. S. S. I. Co. v. Reid, 191 Ala. 628, 68 So. 136, but in that case the employé knew of the danger, and placed his hand on the crank, which act was wholly unnecessary, for, as stated in the opinion, "his hand was placed on the crank thoughtlessly and in utter disregard of an obvious and imminent danger." The argument is further advanced that the affirmative charge was due the defendant upon the theory that the evidence shows without dispute that the plaintiff knew of the defective condition of the apparatus, and agreed to assume the abnormal risk due to such defect in consideration of higher pay. Southern Cotton Oil Co. v. Walker, 164 Ala. 33, 51 So. 169.
The plaintiff's evidence shows repeated promise to remedy the defect, and efforts to do so, as well as increased pay, while the evidence for the defendant tends to show plaintiff made no complaint concerning the appliance. The jury could infer from the proof, therefore, that the plaintiff remained in the service on account of these continuous efforts to remedy the defect. But in no event could it be said the proof showed without dispute that he remained and assumed greater risk for higher pay.
It is further argued that plaintiff was the better judge of his own strength, and if he overexerted himself the risk thus occasioned was his own, and the following authorities on the subject are called to our attention. Roberts v. Ind. St. Ry. Co., 158 Ind. 634, 64 N.E. 217; Ferguson v. Phœnix Cotton Mills, 106 Tenn. 236, 61 S.W. 53; L. N. R. R. Co. v. Lee, 97 Ala. 325, 12 So. 48; T. C., I. R. Co. v. Moody, 192 Ala. 364, 68 So. 274, L.R.A. 1915E, 369. These cases, however, are not applicable to the facts here presented. Here the jury could infer that, while plaintiff was in a somewhat strained (though not dangerous) position, intense pressure or force produced by the machinery was brought to bear upon plaintiff's body, and thereby produced the rupture, which is an entirely different case from those cited.
Assignments of error 7, 8, and 9 deal with refusal to defendant of charges 10, 5, and 9. Charge 5 was covered by charge 4, given for defendant, as well also by the oral charge of the court. In charge 10 the word "deceased" is used where no doubt was intended the word "plaintiff"; and in charge 9 the word "defendant" is found where must have been intended the word "defect." These typographical errors rendered the charges faulty, and under the previous decisions of this court justified their refusal (Tutwiler Coal Iron Co. v. Enslen, 129 Ala. 336, 30 So. 600; Reliance Iron Co. v. Garth, 192 Ala. 91, 68 So. 871); and we need not stop to inquire whether or not they were otherwise faulty.
The witness Kerr qualified as an expert upon electricity, and the control of the same, and we find no error in the action of the court in permitting the witness to testify that a master controller would obviate the difficulty hypothesized in the question based upon the evidence in the case.
The eleventh assignment of error deals with the ruling of the court on a question which does not appear to have been answered.
The twelfth assignment of error relates to the action of the court in overruling objection to the question to the defendant's superintendent whether or not he had at that time purchased for defendant a master controller. The witness indicated he did not know, and finally denied such purchase. There is nothing in this action of the court constituting reversible error.
The charge given at plaintiff's request (the third assignment of error) was proper. Standard Portland Cement Co. v. Thompson, 191 Ala. 444, 67 So. 608; Clinton Min. Co. v. Bradford, 200 Ala. 308, 76 So. 74.
When considered in connection with the entire oral charge, and charges given for the defendant, there was no error in that portion of the oral charge forming the basis for the thirteenth assignment of error.
So, likewise, that portion of the charge set out in the fifteenth assignment of error. There should, of course, be no intimation to the jury of the court's view of the evidence, or the right to recovery by either party, but it was certainly not improper for the court to instruct the jury that a recovery could not be had for a greater sum than the amount sued for. Bradley v. Camp Mfg. Co., 177 N.C. 153, 98 S.E. 318; Root v. Cudahy Packing Co., 94 Kan. 339, 147 P. 69. If counsel for defendant feared any injurious consequences from the instruction being given as it occurred in the instant case, they could have avoided the same by agreeing for correction of the verdict in this respect, or could have requested an instruction which would have answered the purpose.
We have given careful consideration to the insistence there was error in denying a motion for new trial upon the ground that the verdict was contrary to the great weight of the evidence, and the further ground that it is excessive. The rules governing this court upon review of such questions are familiar, and need not be repeated. We enter into no discussion of the facts. Suffice it to say, that after a painstaking review of this record, and in the light of the rules by which we are to be governed, we are unwilling to reverse the cause upon either of these grounds. Another ground of the motion is to the effect that the verdict was contrary to the law as enunciated by the court, but this is clearly without merit, and needs no separate treatment here.
It results that no reversible error appears, and the judgment will accordingly be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.