Alabama Steel & Wire Co. v. Wrenn

HARALSON, J. The case was tried, as admitted on both sides, on count F of the complaint, the others having been withdrawn, the general charge given for defendant on them, or demurrers sustained to them. The pleas were not guilty and negligence of the plaintiff, which contributed proximately to his injury. Demurrers to pleas 6, 9, 12,14 and 15, were sustained, and to the others overruled. It is admitted by defendant, that the court did not err in sustaining the demurrer to the 6th. After demurrers sustained to the 9th, 12th, — 490 — 14th and 15th, by leave of the court, defendant amended each, after which demurrers do not appear to have been interposed to them. Inasmuch as the demurrers to these pleas as originally filed are not set out in the record, we decline to review the rulings of the court thereon. 2. That the demurrer to count E was properly overruled, has been too often decided to admit of further discussion. — Robinson M. Co. v. Tolbert, 132 Ala. 462; 31 So. Rep. 519; B. C. M. Co. v. Parker, 134 Ala. 293; 32 So. Rep. 700; L. & N. R. R. Co. v. Jones, 130 Ala. 456; B. L. & I. Co. v. Campbell, 121 Ala. 50; A. M. R. Co. v. Marcus, 128 Ala. 355, and other cases cited in these decisions. 3. There was no abuse of its discretion on the part of the court, under the facts stated, in not continuing the cause after amendment of the complaint, and forcing the defendant to trial. Defendant showed very clearly, he had. no meritorious cause for continuance.— Humes v. O’Bryan, 74 Ala. 78; Wimberly v. Windham, 104 Ala. 409. 4. The objection to the answer of the witness, Harris, to .the question propounded to him, the basis of assignment of error 9, is without merit. The evidence was not irrelevant, under the pleadings, and whether the witness was an expert or not, qualified to express the! opinion called for, was a matter addressed to the discretion of the court and the pxmvince of the court to decide. The force and value of the opinion expressed was for the jury to determine in connection with all the evidence. White v. State, 133 Ala. 122; L. & N. R. R. Co. v. Sandlin, 125 Ala. 140; Walker v. State, 58 Ala. 393; Insurance Co. v. Stephens, 51 Ala. 123. The witness, Harris, for the plaintiff, was asked to “state whether or not you know plaintiff’s generel experience in work of that kind, after he came to defendant’s rod mill to work?” Plaintiff’s experience as well as defendant’s knowledge of his inexperience, was matter well within the issues of the case. The answer the witness gave, against the objection of the defendant was, — 491 — “After lie came here to work lie looked to be a green man to me.” The answer was not responsive to the question, and the defendant moved to exclude it on the grounds that it was irrelevant, immaterial, illegal and incompetent evidence, which objection the court overruled. The answer, besides being irresponsive to the question, was a mere expression of opinion of the witness, as to how the defendant looked, which might have been true, but he did not state the fact called for, whether he knew the plaintiff’s experience or inexperience in the matter inquired about. He may have looked green, and yet have had experience. The answer ivas improper as evidence tending to show the ■ experience of the plaintiff, or his want of it, and we cannot say that it was error without injury. The same thing may be said of the questions propounded to plaintiff’s witness, Hancock, made the basis of assignment of error 12. 5. Frank Wrenn, a brother of plaintiff, in his examination stated, that he met Cassidy, the defendant’s superintendent, at his place of business in Ensley, and requested him to give his brother, the plaintiff, a job; that Cassidy replied, he thought he could put him to work, find about ten days afterwards, he was put to work. 'The witness was asked if, at the time, there was anything said about plaintiff’s experience. Witness testified that he told Cassidy that his brother was inexperienced, as far as public works were concerned, and if he had anything to pat him at it until he could get something better. The- objection to the question was that it was irrelevant and immaterial. The question was not subject to the objection made. It was competent to show that the plaintiff was inexperienced, and that defendant’s superintendent knew it. Assignments of error 14, 15, and 20 are not insisted on, further than to say they called for immaterial evidence. This was no more than a restatement of the objection, and it is no argument to support the assignments. Moreover, the questions in each instance were not answered. — 492 — 6. Leonard testified for defendant, that be began Avork in a machine shop AAdien be Avas twelve years old, and that drill press A\vorlc Avas simple, and generally done by boys. He Avas asked Iioav old be Avas AAdien be first operated a drill press. Objection to this question Avas properly sustained, for it bad no bearing upon tbe intelligence of plaintiff AAdien put to Avork on sucli a machine, and Avhether lie AAras capable of operating it, especially if it was attended with danger and be Avas uninstructed, as tbe evidence tends to sIioav Avas tbe case. What one person could do safely in operating such a machine, is uot a proper criterion of Avbat another could safely do. Tbe different degrees of capacity and aptitude in one boy might be very different from that of another‘person. For similar reasons, AAdiat Avas proposed to be proved, in tbe same line about tbe son of a Mr. Keenan, was properly held to1 be incompetent evidence. Objection to questions asked this Avitness, the basis of assignments 17 and 18, are Avitliout merit, since the record sIioaacs, that the plaintiff afterivards withdmv his objections to tbe questions and they Avere ansAvered by tbe Avitness. 7. Charges A and B given for tbe plaintiff, are objected to on tbe ground that they are abstract and misleading. If that Avere their only vice, we would not reverse for such a reason. But the charges were not subject to such objection, as there was evidence on Avhich they Avere based, and they each assert correct principles of law. Tbe evidence tended to show that the plaintiff bad been employed on a farm, and knevv little or nothing of machinery, how to operate it and the hazards attending it while being operated; that he Avas a little over twenty-one years old and Avas a man of very common education, and, moreover, that he had not been warned of the dangers in handling it by his employer. As to the latter fact, the evidence for the plaintiff and the defendant was in contradiction, and there was some evidence for defendant tending to shoAAr that whatever dangers there were, — 493 — were obvious. It was proper, as seems to have been done, to leave the determination of such issues to the jury. It is presumed the master, or the person placed in charge of a hazardous business or a department thereof, is familiar with the dangers, latent or patent, ordinarily accompanying the business he had in charge.” “He should inform him [the employe] of the particular perils and dangers of'the service.” — Bailey Mast. Liab. 109; Robinson M. Co. v. Tolbert, supra; Holland v. Railroad Co., 91 Ala. 444; Railroad Co. v. Boland, 96 Ala. 632. Again, Mr. Bailey says: “If there are dangers which are obvious, yet not so much so that they can be seen at a glance, or appreciated, [it is] the duty of the master, if they are not understood by the servant, or hot likely to be known by him, to make them known to the servant. * * * And if there are any dangers, either latent or patent, of which the master lias knowledge, either actual or presumed, Avliich the employe, either from his youth, inexperience, want of skill, or other causes, does not or is presumed not to understand or comprehend, they must be made known to him by the master; and this duty of the master is the same as to the machinery or appliances used or to be used by him. * * This obligation is not discharged by informing the servant generally that the service in Avhicli he is engaged is dangerous; and more especially is so Avhen the servant is a person, avIiO, neither by experience nor by education, lias or Avould be likely to have any knoAvl-edge of the perils of the business, either latent or patent. In such case the servant should be informed, not only that the service is dangerous, but of. the perils of a particular place, and the particular or peculiar dangers that attend the service, if any.” — Bailey’s Mast. Liab. 111, 112, “When there is any doubt as to whether the employe ought to have been acquainted with the risk, and the master was or was not. chargeable Avitli his Avant of knowledge. the determination of the question is ordinarily for the jury.” — Ib. 117, 958; Worthington v. Goforth, 124 Ala. 656, 660. Charge 0 is in exact conformity to Avhat we have here — 494 — tofore said on the subject. — So. R. Co. v. Guyton, 122 Ala. 241. Charge 5 requested by defendant was properly refused. It misplaces the burden of proof. — Moore v. Heineke, 119 Ala. 627. Moreover, it was confused and well calculated to mislead the jury. The facts hypothesized in charge 10 for defendant, do not, under the facts of the case, as a matter of law, place upon the plaintiff, in attempting to do the work himself with three others, an assumption by him of all risk of injury. Whether he had sufficient experience and knowledge of the work and the dangers connected with it, as to understand it, and whether such dangers were so obvious as that one of his experience and intelligence could readily comprehend them, were, under the state of the evidence, proper for the determination of the jury. — Authorities supra. But the charge misplaces the burden of proof. The plaintiff was not bound to aver or prove that he did not assume the risk. It would be for the defendant to show that he acted in such manner and under such conditions as to show that he did assume it. An employe in such case, may be guilty of contributory negligence, but he does not assume the risk incident to the negligence of “any person in the service or employment of the master or employer who has any superintendence intrusted to him whilst in the exercise of such superintendence.” — Code, § 1749, subdiv. 2; Woodward I. Co. v. Andrews, 114 Ala. 243, 257. It is unnecessary to say more, than that the other charges for defendant were properly refused. For the error indicated, the judgment is reversed and the cause remanded. Reversed and remanded.