Collier v. Coggins , 103 Ala. 281 ( 1893 )

COLEMAN, J.

This cause was submitted on a motion to dismiss the appeal, and if that is overruled, then upon its merits. The judgment was rendered in the circuit court on the 4th day of April, 1893. The appeal and supersedeas bond were filed on the 2d day of May, and by statute, the appeal was returnable to this court on the 29th day of May afterwards, that being the first Monday after the expiration of twenty days from the date of the appeal. — Code of 1886, § 3620. The transcript for the appeal was filed in this court on the 5th day of December, 1893.

It is evident that there is an error as to the date of the signing of the bill of exceptions. The bill of exceptions certifies that it is signed ‘ ‘within the time as extended by order of the court of 22d of May, 1893,” and yet the bill itself bears date of May 5th, 1893. The certificate of the clerk shows that the bill of exceptions was filed in his office July 19th, 1893. The summer call of the 8th division expired before the return day of the appeal. The next call was late in January, 1894. The record was filed December 5th, 1893. The appellee was not prejudiced by the delay in not filing the transcript at an earlier date.

The rule on this question is as follows : ‘‘Upon satisfactory excuse being shown for the delay, the court may, in its discretion, permit the transcript to be filed and the cause docketed, for the first time, after the adjournment of the term to, or during, which the appeal is returnable, upon such terms as the court may impose.”— Adopted February 10th, 1894; 97 Ala. p. ix. The motion to dismiss the appeal must be overruled.

The action is in case, brought by the appellee to recover damages for personal injuries; and the trial resulted in a verdict for the plaintiff. Against the objection of the defendant, the court permitted the plaintiff to prove that the defendant stated to him, "he thought that plaintiff could get seventy-five dollars in compromise of his claim,” and that defendant asked him "how much he wanted.” The admission of this evidence was error. Admissions of a party made with a view to a compromise, or an amicable adjustment of a matter in dispute, are not admissible against the party making them. — 1 Brick. Dig., 838, § 479 ; Jackson v. Clopton, 66 Ala. 29.

As a general rule, it is proper to admit proof that the defect or cause of the injury was one that could be seen by ordinary observation, but where the proof shows affirmatively that the person injured knew of the defect’ or danger, and it is not denied, possibly the error in excluding such testimony would not require a reversal of the case.

The other assignments of error are based upon charges given for the plaintiff, and the refusal of the court to instruct the jury as requested by the defendant. That our conclusion upon these questions may be better understood , it becomes necessary to state the several grounds upon which the plaintiff relies for a recovery as set out in the complaint, and the tendencies of the evidence. The first count avers, substantially, that the defendant was engaged in building a bridge or trestle, that one John Stout had supervision and control of the work, and that plaintiff was a laborer employed with others to do the work; that a post had been placed in an upright position on a sill, and negligently Had been left standing in that position without being pinned or secured, sto as to prevent its falling, and that plaintiff had been directed by the supervisor in control to carry a piece of timber, and while performing this duty, he had to pass by the upright post, and while near the post, it fell upon him and injured him. The averments of the second count are substantially, the same as those in the first count, except that in this count it is charged that John Stout was in charge* that plaintiff was bound to conform and' did conform to Ms orders, in carrying the timber, &c. The third count does not state, in what respect the defendant was negligent. It simply avers that the plaintiff was struck by two falling pieces of timber, “by reason of the negligence of defendant’s employé who was in charge of the construction of said bridge or trestle, said injury resulting while acting under the orders of said supervisor, and while conforming thereto,” &c. No objection was taken to the complaint nor to any count, and the case was tried upon the pleas of the general issue and contributory negligence. To entitle plaintiff to recover under the first or second count of the complaint, he was required to prove, as laid, that the post was left standing unsecured, and that when injured he was carrying timber under the orders of John Stout, the supervisor. There is evidence tending to show culpable negligence in leaving the post unsecured against falling, but there is no evidence tending to show, that at the time of the injury plaintiff was carrying timber, or was acting, under the order of John Stout. On the contrary, the proof is, that he had quit the work, which he was directed by John Stout to perform, before completing it, and had gone to assist one Billingsley at his direction, who had charge of a different squad of hands, and was engaged in erecting the post for the bridge or trestle. The plaintiff did not belong to his squad of laborers. We are of opinion that the court should have instructed the jury, at the request of the defendant, that the plaintiff could not recover under the first or second count of the complaint .

The court was requested to instruct the jury that plaintiff could not recover under the third count, in the complaint. The third count is very broad. It avers injury, and charges it as the result of the negligence of the defendant’s employé. Issue was joined upon the defendant’s pleas to this count. There is evidence tending to show that defendant’s employé was guilty of culpable negligence, in leaving the post standing upright unsecured, and that thefallingof the post was due to this negligence. The evidence shows that Billingsley was an employé of the defendant, that he had charge of the laborers engaged in erecting the post, was a superior to plaintiff in this respect, and knew that the post was left in an unsafe condition. There were questions of fact arising under the third count and the pleas which were properly referred to the jury.

These principles dispose of the remaining charges requested by the defendant.

We think the court erred in giving the first charge requested by the plaintiff.. Conceding there was evidence that plaintiff was nota “skilled workman,” we do not perceive the connection this fact has with the conclusion stated in the charge. How was this fact to aid the jury “in determining whether or not plaintiff was directed by those having the right to direct him to aid in the raising of the timber in question?” Besides being abstract, the conclusion is a nob sequiter from the fact predicated.

Reversed and remanded.