Southern Car & Foundry Co. v. Jennings

SHARPE, J. Damage's are sought for injuries resulting to plaintiff from the falling of a crane used hy his employer the defendant, at its foundry, for lifting heavy castings. The trial was had under the first and second counts of the complaint both of which were drawn under subdivision 1 of section 1749 of the Code. The crane stood'hy a brick wall of the foundry building and was supported in an upright, position by being fastened to the wall and roof of the building. By the first count the accident is attributed to defects in a wooden beam and in certain metal strips and rods whereby the crane was held in its position and fastened to the wall. The second avers in substance that the wall was not sufficiently strong to support the crane and that in consequence it gave way and caused the crane to fall. Each of those counts contains the averment that >csaid defect arose from or had not been discovered or remedied owing to the negligence of the defendant or of some person in the service and employment of the defendant, and intrusted by it with the duty of seeing that, the ways, works, machinery or plant-connected therewith were in a proper condition.” These averments of negligence conform substantially to that clause of the statute which defines generally the character of the dereliction which prima facie renders an employer liable for injuries sustained by reason of defects in machinery, etc. Greater particularity of averment respecting acts of negligence is not required. — L. & N. R. Co. v. Hawkins, 92 Ala. 243; Mobile & Ohio Ry. Co. v. George, 94 Ala. 199; E. T. V. & G. R. Co. [256] v. Watson, 90 Ala. 41; Laughran v. Brewer, 113 Ala. 509; Conrad v. Gray, 109 Ala. 133: It was not necessary for the complaint to1 negative that plaintiff had knoAvleclge of the defect. If he had such knoAvleclge before the accident occurred, that fact belonged Avith defensive matter. The demurrers to the first and second counts respectively Aveire properly overruled. Defendant had no right to prove AArhat a Avitness SAVore on a former trial on the mere shoAving that the Avitness Avas not in attendance and was staying indefinitely at Monroeville! in this State. If the: Avitness resided more than one hundred miles from the place of trial his deposition might have been taken (Code, §§ 1825, 1833), and being Avith in the jurisdiction he Avas not out of reach of process by Avhicli his attendance at the trial could have been compelled. See Alabama etc. R. Co. v. Rushing, 103 Ala. 542. The court sustained an objection to a question asked the witness Wrensliall. If in this there Avas error, it AAms rendered harmless to defendant by subsequent testimony of the: Avitness Avherein lie gavre the information called for by the question. There Avas evidence tending to show, the wooden beam in which the top pivot of the crane Avorked, and which served in part to hold the crane to the Avail, Avas unsound, and that AAdien the accident occurred this beam and tire metal fastenings broke, and also that part of the AA'all Avas pulled down. Under the evidence the question of the defendant’s'liability Arms proper to be submitted to the jury under the first count and also under the second count of the complaint. .If the unsound condition of the Avooden beam was a contributory, though not the main, cause of the fall, that condition Avas not immaterial, and therefore charge “F” requested by defendant Avas properly refused. Charge “G” correctly asserts the law as applicable, to the case. An employer is bound to use onty reasonable diligence in the maintenance of machinery and appliances . used in his business, and is not chargeable Avith negligence on account of defects therein the es; [257] istence of which are not discoverable by the nse of such diligence. — L. & N. R. Co. v. Campbell, 97 Ala. 147; L. & N. R. Co. v. Allen, 78 Ala. 494. This charge is not abstract and though given charge 8 is on the same subject and is probably more favorable to the defendant than the one in question, neither that or any other of the given charges assert the principle it embodies with a fullness that can enable us to say that charge “G” was non-injurious to defendant. For the single error committed in such refusal the judgment must be reversed and the cause remanded. Reversed and remanded.