Stephens & Donaldson v. Pierson

PELHAM, J The appellants were sued in the trial court by the appellee for $5,000 damages for injuries alleged by appellee to have been received by him as a laborer in the empl'oy of the appellants, while he was engaged in doing certain work in and about remodeling a dwelling in the city of Montgomery, that was in the course of being repaired or remodeled by appellants, as contractors. There was a recovery of $100 against the appellants, and from that judgment and a judgment overruling a motion for a new trial this appeal is prosecuted. Under the ruling of the Supreme Court, the trial court committed no error in overruling the appellants’ demurrers to the first, second, third, and fourth counts of the complaint. — Birmingham Rolling Mills Co. v. Rockhold, 143 Ala. 115, 42 South. 96; Sloss Iron & Steel Co. v. Tilson, 141 Ala. 152, 37 South. 427; Wolf v. Smith, 149 Ala. 457, 42 South. 824, 9 L. R. A. (N. S.) 338; Jackson Lumber Co. v. Cunningham, Adm'r, 141 Ala. 206, 37 South. 445; West Pratt Coal Co. v. Andrews, 150 Ala. 368, 43 South. 348; So. Cotton Oil Co. v. Walker, 164 Ala. 33, 51 South. 169. It was not necessary that the employee, suing for personal injuries alleged to be due to the negligence of the employer, should in the complaint negative his own contributory negligence. — So. Ry. Co. v. Bentley, 1 Ala. App. 359, 56 South. 249. It is unnecessary for the plaintiff to negative in the complaint that he had knowledge of the defect. — Broslin v. K. C. M. & B. R. R. Co., 114 Ala. 398, 21 South. 475. The evidence was in conflict as to whether the appel-lee was an employee of the appellants at the time he [630] received tlie alleged injuries complained of. The evidence of the defendant was to the effect that such a relationship did not exist. The testimony of the witness McLendon was equivocal as to whether the relation of master and servant existed between the appellee and the appellants, and as to whether, in securing the services of the appellee, he (McLendon) was acting for the employer in the nature of a vice principal or in the relation of an independent contractor. — A. G. S. R. R. Co. Co. v. Vail, 142 Ala. 134, 38 South. 124 110 Am. St. Rep. 23; Smith v. Pioneer Mining & Mfg. Co., 146 Ala. 234, 41 South. 475; L. & N. R. R. Co. v. Lile, 154 Ala. 556, 45 South. 699; Rome & Decatur R. R. Co. v. Chasteen, 88 Ala. 591, 7 South. 94. The evidence of the ap-pellee was positive and pointed in going to establish the relation of master and servant between him and the appellants. There was also evidence going to show admissions made by the appellants of the existence of this relationship at the time the appellee received his injuries, and we cannot say under this state of the evidence that the duty rested upon the trial court to set the verdict aside as contrary to the evidence because of failure to show that-the appellee was in the employ of the appellants at the time the alleged injuries complained of were received. Where the evidence is conflicting, and the preponderance depends upon the credence given it, an appellate court will not review the action of the trial court denying a new trial on that ground. — L. & N. R. R. Co. v. Hutcherson, 174 Ala. 609, 57 South. 379. The ground of the motion for granting a new trial based on the failure of the evidence to show that the ladder complained of as defective was a part of the ways, works, machinery, or plant of the appellants was not Avell taken. The appellee testified that he heard one of [631] the appellants give directions to fix the ladder for the particular, nse that was being made of it by the appel-lee at the time the injuries complained of were sustained by him. See Sloss-Sheffield S. & I. Co. v. Mobley, Adm’r, 139 Ala. 425, 36 South. 181, and authorities there cited. The errors assigned do not show reversible error, and an affirmance must follow. Affirmed.