Melton v. E. E. Jackson Lumber Co.

McCLELLAN, C. J. This suit is prosecuted by Melton against the Lumber Co. Plaintiff seeks to recover ■damages for personal injuries alleged to have been sustained by him through the negligence of the defendant, or of an employe of defendant for whose negligence defendant is supposed to be responsible. The complaint in its forepart alleges that the injuries were “caused by the reason of the negligence of persons in the service or employment of the defendant to whose orders Or directions the plaintiff as employe at the time of the injury was bound to conform and did conform, and such injuries resulted from his having so conformed to said orders and directions;” but in its after part the complaint sets up that plaintiff’s injuries were,sustained in consequence of the failure of one Jones, another employe of defendant, a person to whose orders plaintiff was bound' to 582 conform, and. under whose immediate charge plaintiff was, and whose duty it was to guard and protect and warn plaintiff, who was a deaf-mute, against danger, etc. to notify the plaintiff of the danger of a falling tree which other employes negligently felled without using precautions to avoid injuring the plaintiff, and in consequence said tree fell upon plaintiff and injured him. It is apparent that this complaint is inartificially drawn, but it was not subject to demurrer, and we will not consider whether it sets forth any cause of action, since, assuming that it does, the judgment below for the defendant must be affirmed on the ground that defendant urns entitled to the general charge which was given; there being no- evidence of any negligence for which defendant is responsible. The plaintiff with thirty or forty other laborers was in the employment of defendant and engaged under Jones as foreman or superintendent in clearing the trees, etc. from a railway right of way and constructing a roadbed thereon. He was deaf, but his sight was unimpaired. He of course knew, for he had been there several days while that work was going on, that trees -were being felled all the time where he was working. Jones was under no duty to tell him that this was being done: He knew it as well as Jones did. The danger incident to the felling of trees is of course perfectly obvious, and Jones was under no duty to warn him as to it: He could see and appreciate that as well as Jones could. The fact that he was deaf did not impose any duty upon Jones to warn him of dangers whose presence addressed itself to his unimpaired sense of sight, but rather emphasized his own duty of greater vigilance in the use of that sense. But, as matter of fact, Jones did take cognizance of his infirmity of hearing and out of abundance of caution put him to work with Seals, an acquaintance and friend of the plaintiff, and wdio would converse with him by the use of the finger-alphabet, while Jones could not, and charged Seals not to let him get hurt in any way. Seals was working with him at the time of the injury, and he did all that was possible to save him from the falling tree by pushing him both to call his attention to 'the dan 583 ger and to put him. beyond its path. At the moment plaintiff’s back was to Seals and the communication could only be made in the way adopted. There was some evidence tending to show that plaintiff’s fellow servants who were felling the tree did not give warning that it was falling as soon as they should have, but if they were negligent in this regard it was not negligence for which defendant is responsible to the plaintiff. There was, we conclude, no evidence before the jury that Jones was negligent either in respect of orders given the plaintiff or in respect of warning him of the danger from which the injuries complained of resulted. The trial court was fully warranted in giving the affirmative charge for the defendant. Affirmed.