Grasselli Chemical Co. v. Davis

SIMPSON, J. This suit is by the appellee against the appellant, claiming damages for injury to the plaintiff as an employe of the defendant. The first assignment of error insisted on is to the overruling of the demurrer to the first count of the complaint. The gravamen of this insistence is that the ladder, described in said count, is not a part of the “plant” of the defendant. It is true that the cases from the courts of other states, cited by appellant, do hold that a ladder is a tool, and not a part of the “plant.” On the other hand, there are cases in the English and other courts which hold to the contrary. We hold that, under the principles laid down by our court, the ladder is a part of the “plant.”—Sloss-Sheffield Steel & I. Co. v. Mobley, Adm'x, 139 Ala. 425, 434-437, 36 South. 181; Going v. Ala. Steel & Wire Co., 141 Ala. 537, 548, 37 South. 748. Consequently there was no error in overruling the demurrer to either the first or second counts of the complaint. There was no error in overruling the objection to the question to Dr. Masterson: “Did he, or • not, complain of any suffering or pain?” This related to the expressions of the plaintiff at the time he was being treated, and was not subject to the objection that it was a mere narative of a past suffering.—3 Wigmore on Evidence, §§ 1718 1719 pp. 2208, 2209; Birmingham Ry., L. & P. Co. v. Moore, 151 Ala. 331, 43 South. 841; Birmingham Ry., L. & P. v. Enslen, 144 Ala. 349, 39 South. 74; Birmingham Union Ry. Co. v. Hale, 90 Ala. 8, 8 South. 142, 24 Am. St. Rep. 748. The. court did not err in sustaining the objection to the question to the witness Dunham as- to the position of the ladder when witness went to the place, after the accident, as there was no evidence that the ladder was in the same position as when the plaintiff fell. — 477 — There was no error in permitting the hypothetical question to Dr. Pressley: “I say, suppose — you speak of fever when he was 18 — that he lived to be about 40 years old, never had the slightest trouble with that limb, that it developed as well as the other limb, would not that indicate there was not likely to be any tubercular trouble there?” The objection to this question is that it does not properly hypothesize the evidence. The doctor had testified that the shortening of the limb was due to tubercular trouble, and not to fever, and there was evidence tending to sh«w the facts hypothesized. While it is true that the jury may be misled, bv allowing the opinion of experts on hypothesis not in accordance with the evidence, yet each party has the right to take the opinion of the expert on his theory of the facts.—1 Wigmore on Evidence, §§ 672, 682; Page v. State, 61 Ala. 18; Birmingham Ry., L. & P. Co. v. Enslen, Adm’x, 144 Ala. 343, 344, 349, 39 South. 74; Parish v. State, 139 Ala. 18, 43, 36 South. 1012; Rogers on Expert testimony, § 28, p. 39. The eigth, ninth, thirteenth, and fourteenth assignments of error are to the action of the court in sustaining objections to the questions, by defendant to the plaintiff, on cross-examination, as to whether he had not made statements, when he Avas examined under the statute, contradictory to Avhat he had just testified. The only objection offered Avas that the writing Avas the best evidence. The court erred in sustaining this objection. It is always the privilege of a party on cross-examination to test the accuracy of the statements of the witness, by asking him if he has not on a particular occasion made a certain statement contradictory to his present testimony. The fact that the previous testimony was in writing does not change the rule, nor is it necessary to introduce the Avriting in the first in — 478 — stance. If the witness requests to see the writing, it would have to be shown to him; but the defendant could not introduce it for any purpose.—Birmingham Ry., Light & Power Co. v. Oden, 164 Ala. 1, 51 South. 240. Such evidence is for the purpose of impeaching the accuracy or credibility of a witness, and while á party who introduces deposition of the opposing party, taken on interrogatories, makes him his witness and cannot impeach him (Warren v. Gabriel, 51 Ala. 236; Wilson v. Maria, 21 Ala. 359), yet he is not obliged to offer the deposition (Code 1907, §§ 4053, 4056) ; but merely showing the answer to the witness, for the purpose of refreshing his memory as to what he has sworn, would not be introducing it in evidence. In the case of So. Ry. v. Hubbard, 116 Ala. 387, 22 South. 541, the party offered portions o’f the answers of the witness “for the purpose of contradicting the plaintiff’s testimony on the witness stand,” and the reasoning of the court, in refusing to allow it, was that this was offering the portion in evidence, without offering all, which could not be done, and the court said that such portion could not be offered for the purpose of impeaching him because “a proper predicate was not laid to authorize the admission of contradictory statements for impeachment purposes,” the very thing which defendant was endeavoring to do here. For the same reasons the question to the same witness, “Did you remember, at the time you answered the interrogatories, that Henry Redus was present?” should have been allowed. The record does not show that any exception was reserved to sustaining the objection to the question to the plaintiff - as to whether he did not find a check covering every week from the time he got hurt till December, 1906; hence it cannot be considered. — 479 — There was no error, in sustaining the demurrer to the fifth plea. While it is true that the employe is held to the observance of reasonable care in the discharge of the duties devolving upon him, yet that does not place upon him the responsibility of discovering latent defects in the plant. The only exceptions, in the statute, to the liability of the master for defects in the plant, are: First, “if the servant or employe knew of the defect,” etc.; and, second, “unless the defect * * * arose from,” etc.—Section 3910, Code 1907. We are not to be understood as intimating, however, that the defendant may not set up the plea of contributory negligence in these cases; but the statute is persuasive to show, and it is in accordance with our decisions, that, unless the plaintiff is charged with the duty of inspection, he must either have knowledge of the defect or it must be obvious to the senses. In the quotation made by the appellant from Dresser, the author in speaking of the defense of assumption of risk, says: “An employe is presumed to have notice of and to have assumed all such,risk and hazards which, to a person of his experience, are or ought to be patent or obvious” (italics ours), and the entire context shows that he is referring to obvious defects.—2 Dresser’s Liability, § 94, p. 429 (bottom page 224). The case of Sheridan v. Grahama Mfg. Co., 28 R. I. 256, 66 Atl. 576, 13 L. R. A. (N. S.) 687, is based upon a system of pleading different from ours, under which it seems to be required that the complaint must show the absence of contributory negligence, and it was held that the mere allegation of absence of knowledge did not exclude the idea ■the defect was obvious (first headnote, and page 691 of 13 L. R. A. [N. S]). The same principle is involved in the cases of Olsen v. McMurray C. L. Co., 9 Wash. 500, 37 Pac. 679, 680, and Writt v. Girard Lumber Co. 91 Wis. 496, 65 N. W. 173, 174. — 480 — In our own case of A. G. S. Ry. Co. v. Roach, 110 Ala. 266, 270, 20 South. 132, while the court held that the absence of a special allegation that the dangers were obvious did not render the plea demurrable, yet, it was because the facts alleged showed that it was obvious. In the case of Jones & Hooks v. Finch, 128 Ala. 217, 220, 29 South. 182, 183, where a mule was killed by coming in contact with a trolley wire which was hanging down, this court said: “The driver having a right to assume that the way was free from such dangerous obstruction, and not becoming aware of its presence before the animal was stricken, is not chargeable with contributory negligence.”’ In the case of Osborne, Adm’x, v. Ala. Steel & Wire Co., 135 Ala. 571, 572, 573, 575, 33 South. 687, 688, this court said: “To withstand an appropriate demurrer, a plea of. contributory negligence must be beyond averring negligence, as a conclusion, and must aver a state of facts to which the law attaches that conclusion.” And it was accordingly .held that a plea alleging that the plaintiff knew of the facts was good, while one alleging that “he knew or could have known by the exercise of due care” was insufficient. Said fifth plea does not allege any facts shoAving any duty on the part of the plaintiff to inspect, nor that the defect Avas .obvious. Charges 1 and 9 requested by the defendant were properly refused, as there Avas evidence tending to sIioav that the injury occurred before the time when Johnsey was placed ..in charge of the repairs. There Avas no error in the refusal to give charge 2, requested by the defendant. While it .is true that special damages, to be recoverable, must be specially alleged, yet the allegation that plaintiff “avus made sick, .sore, and lame” Avas sufficient to cover the muscular — 481 — contraction of the knee.—Birmingham Ry., Light & Power Co. v. Brown, 150 Ala. 327, 331, 332, 43 South. 342; Ehgrott v. Mayor, etc., N. Y., 96 N. Y. 265, 277; 48 Am. Rep.. 622; 16 Ency. Pl. & Pr. pp, 385, 386, and note 1; Yeager v. Bluefield, 40 W. Va. 484, 21 S. E. 752, 753; Hanson v. Anderson, 90 Wis. 195, 62 N. W. 1055, 1056. In the case of City Delivery Co. v. Henry, 139 Ala. 161, 165, 166, 34 South. 389, there was no description of the extent of plaintiff’s injury, except that it was “serious,” and that he “suffered both in body and mind,” and the point was raised by demurrer. There was no error in refusing to give either of charges 5, 6, or 7, requested by the defendant. There was no error in the refusal to give charge 8, requested by the defendant. While it may he true that there was no evidence of the “fracture” of the hip, yet, under the principles referred to in treating of the second charge, the injury to the hip was covered by the general averments of the complaint. The bill of exceptions violates rule 32 of the Code, vol. 2, p. 1256, and the costs of this appeal will be taxed against the appellant. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. Dowdell, C. J., arid Anderson and Mayfield, JJ., concur.