Southern Ry. Co. v. McGowan

ANDERSON, J. — It appears from the evidence that the plaintiffs fall and injuries were the result of the breaking of a cedar lever used by him and others-in propelling a hand car upon which they were riding while in the discharge of their duty to the defendant. It also seems to be a question of fact as to whether there was or was not a latent defect in the lever which caused it to break.- If the breaking of the l.ever was due to a hidden defect not known to the master, or. which had not been discovered by the use of ordinary diligence, then the master, would not be liable for injuries resulting therefrom. On, the other hand., if, the lever broke because of ito, general insufficiency to perform the, functions for which it was used, it was for the jury to determine whether or not the master was negligent in furnishing such a handle, and the plaintiff had a right to- expect that one -would, be furnished which could be' used with safety, and would not be charged,with,qn assumed risk unless its insufficiency was known to him. ' It is the duty of the master to furnish the servant reasonably safe appliances. The servant may assume that the appliances furnished are free from defect. He is not required to exercise ordinary care to ascertain the defect. — L. & N. R. R. Co. v. Hawkins, 92 Ala. 241, 9 South. 271. — 451 — . Mr. Bailey, in his work on Master’s Liability for Injuiies to Servant (page 2), repeats the long-established rule as to the implied obligation of the master “that he shall provide suitable means and appliances to enable the servant to do his work as safely as the hazards incident to the employment will permit. * * * In the performance of these duties, the master is bound to the exercise of reasonable and ordinary care, and such only.” The authorities are all agreed that the degree required to be exercised is that of ordinary care; yet as to what measure of diligence will constitute ordinary care in its relation to particular facts and circumstances, and what comparisons and tests may be, or ought to be, applied as a basis for determining whether the act or omission was the exercise of such degree of care, there is apparent conflict. It was very .truly said by the federal Supreme Court in a recent case: “There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct should constitute ordinary care under any and all circumstances.” The terms “ordinary care,”- “reasonable prudence,” and such like terms, as applied to the affairs- and conduct of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed care in one case may under different surroundings and circumstances be gross negligence.. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstance’s and surroundings of each particular case, and then -sav whether the conduct of the parties in that case was such ■as would be expected of reasonably prudent men under a.similar state of affairs. It was, therefore, a question for the jury to determine whether the breaking of the lever was due to its insufficiency to perform the service for which it was adopted, or to a latent defect unknown to the master; and, if to the former, it was also within the province of the jury to determine whether the insufficiency of the lever was known to the plaintiff and he had therefore assumed the risk. It must, therefore, be observed that the affirmative charge was properly refused. — 452 — The second count, as amended, was not subject to the demurrer interposed. It was framed under the second subdivision of the employer’s liability act, and.ascribes the injuries of the plaintiff to the negligence of one Farmer, who had superintendence intrusted to him, in that he failed to keep the handle of the car in proper order and permitted the plaintiff to use it while in a defective condition. The gravamen of the count is the negligence of Farmer and his failure to keep the car in order, and his permitting the plaintiff to use it is a conjunctive averment, and the count does not attempt to set up two separate and distinct, causations,- nor does, it come within the influence of the cases of R. & D. R. R. Co. v. Weems, 97 Ala. 270, 12 South. 186, and H., A. & B. R. R. v. Dusenberry, 94 Ala. 413, 10 South. 274. Nor was the second count subject to any of the grounds, of demurrer assigned; but we do not wish to be understood as holding that it is ,a perfect count. If there are two ways of discharging the service, apparent to the employe, one dangerous and the other safe, or less dangerous, he must elect the safe or less dangerous way, and cannot recover for an injury sustained when the danger is imminent and so obvious that a prudent man would not incur the risk under similar circumstances. — Bear Creek Mill Co. v. Parker, 134 Ala. 293, 32 South. 700; L. & N. R. R. Co. v. Orr, 91 Ala. 548, 8 South. 360; M. & O. R. R. v. George, 94 Ala. 200, 10 South. 145. Pleas C and D do not charge that a safe wav was apparent to or known to plaintiff, and were subject to the demurrer interposed, which was properly-sustained. In order for the plaintiff to be charged with the assumption of risk, it is not sufficient- that the defect be obvious; but it must convey .to a mind like his the danger that may or is likely to result from the defect. It is important here to note- a distinction well elucidated in the cases of Russell v. M. & St. L. R. R., 32 Minn. 230, 20 N. W. 147, and Cook v. St. P. R. R., 34 Minn. 45. 24 N. W. 312, viz.: “It is one thing to be aware of' defects in the instrumentalities or plant furnished by the master for the performance of his services and another thing to know or appreciate the risks resulting, on — 453 — which may follow from such defects. The mere fact that*the servant knows the defects may not charge him with contributory negligence or the assumption of the risk growing out of them.” The question is: Did he know, or ought he to have known, in the exercise of ordinary common sense and prudence, that the risks, and not merely the defects, existed? See, also, Bailey’s Master’s Liability for Personal Injuries, 184. The demurrers to pleas 4, F, and G were properly sustained. In the case of L. & N. R. R. Co. v. Stutts, 105 Ala. 368, 17 South. 29, 53 Am. St. Rep. 127, there is an expression by the writer on page 367 of 105 Ala., page 29 of 17 South. (53 Am. St. eRp. 127), which is misleading ánd rather commits the court to the doctrine of assumption of risk based upon a mere knowledge of the defect, regardless of a knowledge of the dangerous consequences; but the ivriter further on quotes, and there appears the additional fact that the servant must have acquired notice of “an incurred risk of danger.” Again the writer says: “The'only defects brought to light and complained of Avere patent, and understood by the engineer as Avell as by the company,” etc. If they were patent and understood by' the engineer, then he, of course, not only kneAV of the defects, but kneiv that their existence increased his risk or danger, and the opinion is really in line with Avhat Ave hold in the case at bar. — Birmingham Railway & Electric Co. v. Allen, 99 Ala. 359, 13 South. 8, 29 L. R. A. 457; Eureka Company v. Bass, 81 Ala. 200, 8 South. 216, 60 Am. Rep. 152. The trial court properly overruled the demurrer to the replication to the third plea, and properly sustained the one to the rejoinder. It Avas not necessary for the plaintiff to notify the defendant of the defect, if the defendant already knew the same. The law does not require the doing of a useless thing. The case of Thomas v. Bellamy, 126 Ala. 253, 28 South. 707, merely repeats the statute, which relieves the servant of giving notice if he is aware the master knew of the defect; but we do not think that the statute means that the servant is required to give the notice, whether the master was aware of it or not, unless he knew the master knew it. If the — 454 — master knew of it, then the servant is relieved of giving the notice, although he may not know that the master knew of the defect. — Birmingham Railway & Electric Co. v. Allen, 99 Ala. 359, 13 South. 8, 20 L. R. A. 457. The trial court did not err in permitting plaintiff to prove that there were other timbers where Farmer put in the cedar stick. It was for the jury to determine if the other timbers were stronger and better, and if a failure to get a stronger and better one did not tend to show negligence in furnishing ways, works, etc. It is true that the use of the other timbers would not relieve the master if they were insufficient nor was it required to get other timbers if the one used was sufficient; but the failuxe to get a better one, which was as convenient as the one that -was gotten, was a circumstance for the jury. There was no error in permitting the plaintiff to. show that others had been riding backward. While a custom to violate a rule does not make the violation less negligent, yet the existence and promulgation of the rule forbidding the hands from riding backward was disputed, and the fact that they frequently rode backward in the presence of Farmer was a circumstance for the consideration of the jury in determining whether or not such a rule existed. The plaintiff had the right to show that "he was ruptured by the fall, and to exhibit himself to the jury, if the trial court saw fit to permit him to do so. It is true that the complfiint did not claim damages for a rupture, and the record discloses no' amendment to- cover this claim; bxxt the bill of exceptions recites that leave was asked and granted to amend in this respect, and we will presume from' these recitals, 'that the complaint was axnended so as to meet this evidence, in. order to sustain the ruling of the lower court. — Lesne Case, 3 Ala. 741; Bettis’ Case, 28 Ala. 214; 2 Am. & Eng. Ency. Pl. & Pr., 468; 1 Am. & Eng. Ency. Pl. & Pr. 581, 582. Tlxe trial coxxrt properly sustained the objection ás to “whether or not McGfowaii would hate been hurt if he had been standing behind the lever.” It called for the mere conclusion of the witness. It was for the jury to — 455 — determine from tlxe evidence whether or not his position on the ear was the cause of his injury. There Aras no error in the oral charge as excepted to by defendant. There Avas no error in giving charges 1, 2, 3, and 4, requested by the plaintiff. Charges 1, 2, and 3, requested by the defendant, Avere the affirmative charges, and have been fully discussed in this opinion. They Avere properly refused. Charge 4, requested by the defendant, Avas properly refused.. If not otherwise bad, it seeks to charge the. plaintiff Avith a mere knowledge of the kind of Avood and its weakness, Axiiet-her he knew that it Avas dangerous to use such a handle or not. Charge 5, requested by the defendant, was properly refused. It was abstract. The injury was not the result of tools furnished, but Avas the result of a defect in the ways, Avorks, etc. Charge 6, requested by the defendant, was properly refused. It invades the province of the jury. Charge 7, requested by the defendant, was properly refused. If not otherwise bad, it seeks to relieve the defendant if the condition of the handle was open to ordinary observation, yet the defect may not have been so open to observation as to apprise the plaintiff that it was dangerous or risky to use the same. Charge 8, refused to the' defendant, if not otherwise bad, ignores the fact as to whether the split or hollow, if open to ordinary observation, was of such character to put plaintiff on notice that it Asms dangerous or risky to use the same. Charge 9, requested by the defendant, was properly refused. It was calculated to mislead the jury to conclude that there Avas no duty upon the defendant to see that the handle was. not defective, notwithstanding its defective condition may have been' such, upon examination, that it would be dangerous to use it. Charge 10, requested by the defendant, was properly refused. If not other Avise bad, it pretermits a knowledge of the defendant of a defect in the handle. There was no error in refusing the other charges requested by the defendant. — 456 — After a careful consideration of the evidence, we are not willing to reverse the action of the trial court in overruling the motion for a new trial. The judgment of the circuit court is affirmed. Tyson, C. J., and Dowdell and McClellan, JJ., concur.