Birmingham Rolling Mill Co. v. Myer

TYSON, (\ J. The recovery in this case was on the first count of the complaint,; the other count having-been charged out. The count is framed under subdivision 1 of the employer’s liability act, now constituting, in part, section 1749 of the Code, of 1896. The defect relied on was in a hook which’ formed a part of the machinery by which balls of hot iron were transported from the furnace, to what was known as the “squeezers,” situated at another place in defendant’s plant. The transportation was by means of a trolly, from which the appliance was suspended which grasped the ball of iron, of which the hook formed a part, and along which the appliance halding the ball was made to roll by being pushed by the plaintiff, who was a puddler. The transportation was required to be rapid, in order to prevent the ball of iron from cooling before reaching the ‘squeezers. It was while in the performance of this service that the hook broke, causing the ball of iron to fall and to precipitate the plaintiff to the ground, inflicting upon him physical injuries. It is alleged in the count that the hook was “old, rusted worn, broken, defective, or wholly insecure, and unfit, or too weak and rotten, for the business and use for which it was used at the time, and that such defect arose from, and had not been discovered or remedied owing to the negligence of said defendant, or of some person in the sendee of defendant with the duty of seeing that such hook and machinery were in proper and safe condition.” [348] It is first insisted by appellant that the affirmative charge requested by it should have been given. This insistence proceeds upon two theories: First. That it Avas incumbent upon the plaintiff to prove that the defect arose from the negligence of some person intrusted by defendant Avith seeing that “such hook and machinery Avere in proper and safe condition.” It is true the word “safe” is not used in the statute, and it is also true that the Iuav does not impose the duty that the hook and machinery should be safe. Reasonably safe is all that is required. But Ave do not understand that plaintiff was required to prove both of the alternative averments. Proof of the other alternative averment, that the defect arose from, and had not been discovered or remedied OAving to, the negligence of defendant, Avould suffice. And this averment may be sustained by proof of the negligence of a servant or agent AAdiose duty it was of seeing that the hook was in proper condition for the uses to which it Avas being applied.—Lookout Mountain Iron Co. v. Lee, 144 Ala. 169, 39 South. 1017. Furthermore, the words “proper and safe condition” are not descriptive of the negligence counted on, but AArere simply used to identify the servant of defendant charged Avith the negligence, and not. to identify the negligence itself. The second ■ theory seems to be that the appearance of the hook did not indicate any defect in it; that it had every appearance of being sound. It may be conceded that one of .the witnesses swore to this, but the tendency of the testimony of other witnesses Avas to the effect that it Avas badly worn at the time it broke. Indeed, the testimony afforded an inference for the jury that the hook was wholly insecure and unfit for the use to which it was put. Upon the entire testimony it cannot, it seems to ais, be dOAAbted that Avhether the defendant was guilty of negligence, as alleged, was a qAiestion for the jury. The insistence, therefore, imist fail. The next insistence is that the court erred in refusing written charge numbered 22, requested by defendant. As to Avhether or not it was the dAAty of the plaintiff to see that the hook was in a suitable and fit condition for the purpose for which it was to lie Aised, the testiAAiony [349] afforded conflicting inferences; and as to whether or not his duty extended further than to call for a different hook only when the one furnished caused the ball of iron to swing too low or too high, in order to raise or lower the appliance which held the ball, the testimony afforded conflicting inferences. If the latter was the. full measure of his duty, and whether or not it was, was a question for the determination of the jury, then the duty of seeing that the hook was reasonably safe was not upon him; and if the latter was found by the jury to be the limit of his duty, then the charge was properly refused, for the reason that it denie's to the plaintiff the right to recover because of his failure not to discharge his duty in that respect. Charge 23, requested by defendant, was also properly refused, for the reason that it failed to hypothesize that the acts or omissions of the plaintiff contributed to his injury. Charge 24 was bad, because it ignored the duty of due care in originally furnishing a reasonably safe hook. This disposes o.f all the charges refused to defendant that are insisted upon, and brings us to a consideration of the only charge given at plaintiff’s instance assigned as error. The only legitimate criticism of this charge is its tendency to mislead the jury, in that it omitted all reference to that phase of the testimony tending to show that it was plaintiff’s duty to see that the hook was reasonably safe before using it. In other words, it was calculated to divert the jury’s attention from this phase of the testimony, and direct to that phase of it tending to show that no such duty was assumed by him or imposed upon him. The giving of such a charge is not a reversible error; but in such case the party complaining should ask explanatory or additional instructions to obviate its misleading tendency.—A. G. S. R. R. Co. v. Jones, 71 Ala. 487; Central of Ga. R. R. v. Hyatt, 43 South. 867. We are unwilling to affirm that the overruling of the motion for a new trial was error. Affirmed. Dowdell, Anderson, and McClellan, JJ., concur.