Richmond & Danville Railroad v. Weems

HEAD, J. — It is not denied that the ruling of the City Court upon the demurrers to the complaint was offensive to the principle declared by this court in H. A. & B. R. R. Co. v. Dusenberry, 94 Ala. 413, s. c. 10 So. Rep. 274. The com. plaint improperly sets forth, in one count, three of the separate causes of action defined by the Employers’ Liability Act. It is insisted, however, that, upon the whole record, that ruling was error without injury, for the reason that the bill of exceptions contains all the evidence and the rulings and instructions of the court, on the trial before the jury, and there was no evidence introduced by either party, tending to support either of the causes of action set forth, except the single one counting on the defective condition of the derrick, constituting a part of the ways, works, machinery or plant of the defendant company; and that the court expressly and affirmatively instructed the jury, in its oral charge, that there could be no recovery by the plaintiff, unless by reason of the alleged defect in the derrick. We have carefully considered this question and have reached the conclusion that it would be an unjustifiable extension of the [273] doctrine of error without injury to hold that a defendant who has been unlawfully compelled to form issues with the plaintiff upon distinct and independent causes of action pleaded in one count, was not prejudiced thereby, because thereafter the plaintiff, on the trial, abandoned all but one of the causes of action alleged. We can not know that if the count had been legally framed so as to set forth one cause only, the defendant’s pleas thereto would not have been different. It would be unsafe therefore to apply to a case like this the principle of error without injury. We will not extend the doctrine further than it is declared in L. & N. R. R. Co. v. Trammell, Admr., 93 Ala. 350; Manning v. Maroney, 87 Ala. 563; Water Co. v. Nat. Met Co., 89 Ala. 401; K. C., M. & B. R. R. Co. v. Higdon, 94 Ala. 286, s. c. 10 So. Rep. 282. The complaint was, in other respects, sufficient. The plaintiff’s injury was caused by the breaking of a gudgeon pin which fastened the arms of the derrick to the mast. The pin was a comparatively new one, made of steel, by the defendant’s mechanic and was placed in the derrick by the foreman in charge. It was one and one-quarter inches in diameter. The controversy was whether the pin, as made and furnished, was of sufficient material and size for safe operation of the derrick. The evidence relied upon by the plaintiff tended to show that such a pin of such material and size was unsafe and unfit for the use intended, and that defendant was negligent in furnishing it. The evidence relied upon by the defendant tended to show to the contrary. The issue was clearly one for the jury, and the affirmative charge requested by the defendant was properly refused. So, also, were charges 9 and 11 requested by defendant. The oral charge of the court is set out in full. Exceptions Avere reserved by defendant to isolated portions of it. The charge must be considered as a whole. If the parts excepted to, though subject to criticism, or positively erroneous, standing alone, are so explained or modified by the context as that the laAV is truly stated, there is no ground for reversal. — Hawkins v. Hudson, 45 Ala. 482; A. G. S. R. R. Co. v. Hill, 93 Ala. 514, s, c. 9 So. Rep. 722. We have carefully examined the charge and are of opinion that it fairly and fully sets forth the law applicable to the case. Charges 17 and 18 are argumentative and invade the province of the jury and were properly refused. We think there is no merit in any of the exceptions to testimony. The question to the witness, Kinney, whether or not he told Husen, the division-master, that the gudgeon pin Avas too small for the work it was sent there for, if not [274] proper for the purpose of showing that Husen had notice of the alleged defect, did the defendant no harm, since it was answered, if at all, in the negative. The witnesses, St. Clair and Clark,'were shown, by abundant proof, to be experts in the construction and use of derricks, and were competent to give their experience and opinions in respect of the several matters about which they were interrogated. Whatever there was objectionable in their testimony, if anything, was ruled out by the City Court. Eor the error in overruling the demurrers to the complaint, the judgment of the City Court is reversed and the cause remanded. Eeversed and remanded.