Louisville & Nashville R. R. v. Handley

ANDERSON, J. This is an action by the plaintiff, an employee, for personal injuries sustained while engaged in removing certain joists connected with a roof of the defendant. Counts 1 and 3 are framed under subdivision 2 of section 3910 of the code of 1907, and charge negligence on the part of one McCord, a person in the service of the defendant, who had superintendence intrusted to him, whilst in the exercise of said superin — 600 — tendence. Count 2 is framed under subdivision 3, and charges the injury as the result of the compliance with an order given by said McCord as superintendent, and to which said order it was the plaintiff’s duty to conform. There was proof sufficient to carry all of said counts to the jury; hence the defendant was not entitled to the general charge as to all of said counts, or any one of them, upon the theory that there was no evidence in support of same. There was evidence from which the jury could infer that it was negligence on the part of McCord to have the joists removed in any manner before first having the decking removed from the rafters. See evidence of defendant’s witness Klein, page 41 of the record. There was also evidence that the said McCord ordered the plaintiff to go under the shed and remove the remaining joist, and assured him that he could do so with safety. This case was tried upon the general issue and special pleas 2, 3, and 4, pleas 3 and 4 being contributory negligence, and plea 2 being an assumption of risk; and it is insisted by appellant that it was entitled to the general charge, because said special pleas or some of them were proven beyond dispute. We cannot agree to the contention that said pleas were- proven beyond dispute. The second plea, among other things, says: “And the danger of said roof falling upon him while under said roof was an obvious danger known to the plaintiff, etc. It was a. question for the jury as to whether or not the danger of the roof’s falling was known to the plaintiff. True, his evidence shows that he came out and expressed himself to McCord as fearing that the roof would fall if he pulled off the remaining joist; but it also shows that McCord assured him that the roof would not fall,, “that it was nailed too good at the top.” There was — 601 — also proof that it could uot have fallen/ if nailed well at the top, even after the joist ivas removed. The plaintiff did not test the roof himself to see whether or not it was securely nailed at the top, and he was not compelled to act upon his mere suspicion of danger, but had the right to rely upon the superior skill and knowledge of his superintendent, McCord, who had assured him that the roof ivas safe and uas securely-nailed at the top. — Pioneer Mining & Mfg. Co. v. Smith, 150 Ala. 859, 48 South. 561, and cases there cited. It was also for the jury to determine whether or not the plaintiff carelessly and negligently prized the joist from its fastenings, under the circumstances as averred in the 3d plea. Nor did the undisputed evidence show that he went under the roof in violation of McCord’s instructions, as averred in plea 4, as the plaintiff’s evidence was to the effect that McCord ordered him to go under the roof, and that he was complying with, instead of disobeying instructions. While we are treating the case upon the issues formed under the rulings of the trial court, we do not wish to be understood as sanctioning the propriety of plea 2, which is an assumption of risk, as a good answer to the negligence charged to the superintendent under subdivisions 2 and 3 of the employer’s liability act. The action of the trial court in overruling, the plaintiff’s demurrers to said plea 2 finds support in the case of Briggs v. Tenn. Coal & Iron Co., 163 Ala. 237, 50 South. 1025; but said case, in so far as it holds that plea 4, there considered, Avas good as an assumption of risk, as against the negligence of the superintendent, is not in harmony Avith our authorities. Nor is it supported by the authorities there cited and relied upon. The case of Coosa Mfg. Co. v. Williams, 133 Ala. 606, 32 South. 232, is not in point. It did not involve the doctrine of — 602 — assumption of risk, and the only thing discussed was the negligence yel non of the defendant’s superintendent and contributory negligence of the plaintiff. Section 438, pp. 1234, 1235, 1 Labatt, cited in the opinion, was evidently discussing the rule generally, and has no application to negligent acts or defaults for which the statute declares the master liable. It is evident that the eminent writer was not there dealing with negligent orders for which the master is made liable under the statute, in his general discussion, under section 438 of his work; for we find him noting an exception in section 650 of his work, in dealing with the negligence of a statutory vice principal, for he says in subdivision “b” of section 650 (page 1901) : “The possibility that an employee for whose acts and defaults a master is declared by a statute to be liable may at some future time be guilty of negligence in the discharge of his duties is not one of the risks which is undertaken by a servant who is within the protection of the statute. A different doctrine would manifestly have the effect to render such a statute, ineffectual for the purpose for which it was framed” — citing and quoting in the note to said section our own case of Woodward Iron Co. v. Andrews, 114 Ala. 243, 21 South. 440. It has been repeatedly held by this court that an assumption of risk is no defense to an action brought by an employee under the second, third, and fifth clauses of section 3910 of the Code of 1907. Says the court, speaking through McClellan, J., in the Andrews Case, supra: “To sustain it would be to emasculate the employer’s liability act in respect of its second, third, and fifth clauses, and to rehabilitate the common-law doctrine of fellow servants as applicable to the cases provided for in those clauses, when the clear purpose of the act is to destroy the defense of assumption of risk by — 603 — the injured employee in the several cases stated in the counts referred to. An employee in such cases may he guilty of such contributory negligence as will bar his recovery; but he does not assume the risks incident to the negligence of the superintendent, or of a person to whose orders he was bound to conform and did conform, or of a person in charge and control of a locomotive, engine, car, etc. — Reno’s Employer’s Liability Act, § 190.” The case of Briggs v. Tenn. Co., supra, is not only opposed to the case of Woodward v. Andrews, supra, but is in conflict with L. & N. R. R. Vo. v. Wynn, 166 Ala. 414, 51 South. 976; St. L. & S. F. R. R. Co. v. Brantley, 168 Ala. 579, 53 South. 308; Pratt Coal Co. v. Davidson, 173 Ala. 667, 55 South. 886; Postal Tel. Co. v. Hulsey, 132 Ala. 444, 31 South. 527; A. G. S. R. R. Co. v. Brooks, 135 Ala. 401, 33 South. 181, Mahoney v. Bay State Co., 184 Mass. 287, 68 N. E. 234, 2 Dresser’s Assumption of Risk, pp. 199 and 200, and many cases there cited, and 3 Elliott on Railroads, § 1290. The case of Tenn. Co. v. Briggs, supra, is overruled, in so far as it holds that an assumption of risk is a good defense as against the negligence made actionable under subdivision 2, 3, and 5 of the employer’s liability act. Each count in the case of Southern Cotton Oil Co. v. Walker, 164 Ala. 33, 51 South. 169, was framed under subdivision 1 of section 3910 of the Code, charging a defect in the ways and works, and the quotation from section 438 of Labatt may have been apt as to the case there considered; but said quotation must not be considered as approving or applying the doctrine to subdivisions 2, 3, and 5 of section 3910. We cannot put the trial court in error as to the first exception to the oral charge, as it does not ignore the defendant’s special pleas. It predicates the plaintiff’s right to recover upon the hypothesis that he proved the — 604 — negligence averred and that said negligence was the proximate canse. If it was the proximate cause, then the special pleas were not proven, and the charge so framed cannot be said to have ignored the defendant’s special defense. The second and third exceptions to the oral charge were in direct conflict with the defendant’s second plea, and virtually destroyed said plea as a defense. It is true the plea was insufficient; but the trial court, in ruling upon the demurrers thereto, adjudged it a good plea, and, after so holding, the charge should have conformed to the issues made by the pleading. Nor can we say that this was error without injury, because the plea was bad and the charge was correct. “Instructions must be pertinent to the issues formed between the parties.” We cannot say what the issues would have been had the pleading been different, and if demurrers had been sustained to this defective plea the defendant might have amended same so as to present a meritorious defense, and, having had said plea approved by the trial court, it was entitled to the benefit of same in the charge of the court. — Pratt Coal Co. v. Davidson, 173 Ala. 667; 55 South. 886; Moffatt v. Coaklin, 35 Mo. 453. It is true the court gave a written charge for the defendant, instructing a verdict for the said defendant upon proof of the second plea; but this did not change the force and effect of the oral instruction, and left the jury in a state of confusion. Under the written charge, they were authorized to find for the defendant, notwithstanding it was guilty of negligence as charged in the complaint, if the second plea of assumption of risk was proved, yet the effect of the oral charge was to instruct them that the matter set up in said plea was no defense against an extraordinary danger or the negligence of the de — 605 — fendañt. — Birmingham R. R. Co. v. Seaborn, 168 Ala. 658, 53 South. 241. There was no error in refusing charge 20, requested by the defendant. It gives undue prominence to, and singles out, a part of the evidence: There Avas no error in refusing charge 22, requested by the defendant. It pretermits making the plaintiff’s negligence a proximate contributing cause of the injury. He may have been guilty of some slight negligence as to the execution of McCord’s orders, yet it may not have proximately contributed to his injury. The case of McAdory v. L. & N. R. R. Co., 109 Ala. 640, 19 South. 905, does not sanction this charge. It Avas merely dealing AA'ith the plaintiff’s right to recover if his negligence, jointly with the defendant’s, contributed to the injury, AAdiile the charge in question does not even make the plaintiff’s negligence contribute in any Avay to the injury. Assignment 21 is not insisted upon. The brief merely restates the assignment of error, unaccompanied by any argument. There is no merit in assignments 1, 2, 3, 4, 7, 8, and 9. All saA'e tAvo call for opinions of experts in and about matters peculiarly within their knowlodge as such. So, too, did the plaintiff have the right to shoAV his age, and what he aauis earning when injured. Affirmed. Doavdell, C. J., and McClellan, Mayfield, Sayre, and SoAiERAiLLE, JJ., concur in the opinion, except as to the holding that there was reversible error in the oral charge. They do not think the oral charge, as excepted to, Avas in conflict with the pleading, and think that it stated the law. The case is therefore affirmed. I think the case should be reversed, for the reason set forth in the opinion, and dissent.