Marbury Lumber Co. v. Heinege

ANDERSON, C. J. [1] This case was submitted to the jury upon counts B and E. They are under subdivision 2 of section 3910 of the Code of 1907, and are, for all practical purposes, identical, except that one charges the negligence to Superintendent Davis while the other ascribes the negligence to an unknown superintendent. These counts under our system of pleading sufficiently set forth the relationship of the parties, the duty owing from the one to the other, the nature and character of the work, and the cause of the intestate’s death proximately resulting from the negligence of the defendant’s superintendent in failing to fumisli or provide sufficient appliances for supporting or bracing the platform or structure while the work was being done, and that the negligence occurred while in the exercise of such superintendence, etc. While there were several grounds of demurrer interposed, the chief one relied upon by appellant’s counsel is No. 7, challenging the failure of the counts to specify the character or kind of appliances that should have been furnished for bracing or supporting the platform or structure. We do not think that this specific averment was necessary to make the counts good. L. & N. R. R. Co. v. Jones, 130 Ala. 456, 30 South. 586; Williamson Iron Co. v. McQueen, 144 Ala. 265, 40 South. 306; Tenn. Co. v. Moore, 194 Ala. 138, 69 South. 540, and numerous cases there cited. The trial court did not, therefore, err in overruling defendant’s demurrer to these counts. - [2-4] The trial court did not err in permitting the witness Holland to testify that Charlie Davis was in charge of the worn:, or that he got his orders from said Davis, and that Davis gave the orders and directions to the men. Nor will the trial court be put in error in permitting the said witness to testify that Mr. Davis was superintendent, as there was no objection to the question or the answer. There had been a previous objection which was sustained ás to who was superintendent, but when the question was repeated in a slightly different form there was no objection to the question or answer. Moreover, this court has held that a witness may testify as to who had superintendence over him under the rules of the master. Choctaw Co. v. Moore, 184 Ala. 449, 63 South. 558. [5, 6] The trial court did not err in permitting this witness Holland to testify as to the sufficiency of the props, or as to how the structure should have been braced or propped. The witness had previously testified that he had been a carpenter for eight or ten years, and the trial court- evidently found that he was an expert, and which finding will not be revised by this court. Ala. Consol. Co. v. Heald, 168 Ala. 626, 53 South. 162. The witness being an expert could give his opinion as to the unsafety of the platform and as *243 to how it could have been made safer. Burnwell Co. v. Setzer, 191 Ala. 408, 67 South. 604. [7, 8] There was evidence from which the jury could infer that the defendant’s superintendent in charge of the work was guilty of negligence in failing to supply sufficient braces or supports for the structure, and that said failure was the proximate cause of the death of plaintiff’s intestate. The defendant was not, therefore, entitled to the general charge upon the idea that the plaintiff had failed to make out her case. Nor was the defendant entitled to the general charge upon the theory that the intestate had assumed the risk or was guilty as matter of law of contributory negligence. This action being under subdivision 2 of section 3910 of the Code of 1907, and predicated upon the negligence of a superintendent, the assumption of risk by the intestate was not an available defense. L. & N. R. R. Co. v. Handley, 174 Ala. 593, 56 South. 539; Woodard Co. v. Andrews, 114 Ala. 243, 21 South. 440. The intestate was not as matter of law guilty of contributory negligence in going upon the platform without first knowing that it had been properly braced, as he had a right to rely to some extent upon tlie superintendent’s seeing that the structure had been safely braced before sending him to work upon the platform, and the evidence does not conclusively show that the intestate knew that the structure was not properly braced or that it was in a dangerous condition when he went to work upon the top of same. [9] There was no error in refusing the defendant’s requested charge 5. ' If not otherwise faulty, it was elliptical, and therefore unintelligible. [10] There was no error in refusing the defendant’s requested charge 6. True, counts B and E charge a failure to furnish braces or supports to the old or existing platform or structure and not the new tank or supports to same; yet, if the latter was not properly guyed and fell and caused the old one to fall, the old one may have withstood the contact of the other had it been properly braced or supported, and the jury could have inferred’under the hypothesis of this charge that this failure to support or brace the old tank or structure was a proximate cause of the intestate’s death, and if such was the case the defendant was not entitled to a verdict as directed by the charge. [11] The trial court, in the oral charge, seems to have adhered to the rule of computation as laid down in the case of Reiter-Connolly Co. v. Hamlin, 144 Ala. 220, 40 South. 280, as to instructing the jury, and there was sufficient data furnished the jury (is to intestate’s earning capacity as a carpenter and farmer as to warrant the amount of the verdict in question, and we cannot say that the trial cóurt erred in not granting the new trial because the verdict was excessive. The judgment of the circuit court is affirmed. Affirmed. McClellan, somerville, and Thomas, JJ., concur. Footnotes [1] cSc^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests'and Indexes