Pierson Lumber Co. v. Hart

SIMPSON, J. This was an action for damages, resulting from an injury received by the plaintiff, as he claims, while in the employment of the appellant and while jumping from a car to avoid imminent peril. The first insistence of appellant is with regard to the first four assignments of error relating to the overruling of defendant’s demurrer to the complaint; it being insisted, first, that the character of plaintiff’s employment is not 'definitely stated, inasmuch as it is stated in'the complaint that he was employed as a foreman or boss; second, that it was not alleged that the plaintiff was in [245] any danger of being thrown from the car or being seriously injured when he jumped from the same. The demurrers were properly overruled. The important relationship to show is that of employe, and the further designation of “foreman or boss” is sufficiently specific; the names each indicating the same general duties. The allegation that he was placed in a position of peril is sufficient, without entering into the particulars as to what caused the peril, and, being in a position of peril, it was not necessary to show that it was actually necessary for him to jump to save himself. — Postal Telegraph Co. v. Hulsey, 132 Ala. 447, 31 South. 527. The court erred in overruling the demurrer to the fifth count, as the court could not assume that it was negligence not to have a particular kind of brake. The demurrer to the first plea was properly sustained. The fact that the train was running only at the rate of 10 miles an hour would not authorize the court to say that plaintiff was not. in a position of peril. . • The sixth and seventh pleas were properly held to be subject to demurrer. One exposed to sudden and unexpected danger is not responsible for acting -without judgment or wildly, and whether he so- acted depends materially upon the facts and circumstances of the case. The proper inquiry is, considering his surroundings at the time, did he exercise such reasonable care and diligence as would be expected of a prudent and reasonable man under similar circumstances? — Postal Tel. Co. v. Hulsey, supra. It was for the jury to say whether or not, considering the circumstances, he did exercise such reasonable care and diligence. The demurrer to the twelfth plea was properly sustained, as said plea did not- allege that the danger from the supposed defect was either obvious or known to the plaintiff. — Boyd v. Indian Head Mills, 131 Ala. 356, 31 South. 80; Sou. Ry. Co. v. Guyton, 122 Ala. 231, 241, 25 South. 34. The plea was otherwise insufficient. ■ There was sufficient evidence on the subject of plaintiff’s employment, and the nature of it, to go to the jury. Consequently there was no error in the refusal to give the general charge, requested by the defendant., [246] Charges 8, 4, 5 and 11, requested by the defendant, were properly refused. — Sou. Ry. Co. v. Howell, 135 Ala. 639, 648, 34 South. 6. Charge 12 was properly refused. There was not any proof of negligence in the plaintiff, or of negligence or unskillfulness in 'the treatment by his physician. The only evidence is that he was very nervous, and that the doctor would find the bandages disarranged when he visited him. There was no evidence of any conscious fault of the plaintiff. — Postal Tel. Co. v. Hulsey, supra. Charge 15 was properly refused. The plaintiff himself testifies that he was employed as foreman, and there is other testimony from which the jury might have found that he was so employed. Charges 17 and 18 were properly refused. The complaint alleges that the plaintiff was foreman or boss of a crew of men engaged in hauling logs on a log train. Although his special duties may have been to attend to and supervise the loading and unloading of logs on said train, it is difficult 'to see how he could have performed these duties without going on the train from the place of loading to the plhce of unloading. The judgment of the court is reversed, and the cause remanded. Haralson, Tyson, and Anderson, JJ., concur.