Tuscaloosa Water Works Co. v. Herren , 131 Ala. 81 ( 1901 )

ÍSHARPE, J.

Plaintiff was employed by defendant to attend and operate machinery situated in two rooms of its pumping house. One of the rooms containing the engine, heater, etc. was below the other and was connected by a stairway with the room above. A superintendent of the plant in directing the making of repairs in the lower room, caused a scaffold to be made which was supported in part by a scantling or piece of timber placed laterally with one end rested on a step of the stairs high above the basement floor and so as to leave room for one to pass at its end along the stairs. In that position the timber had lain for about ten days, and of this plaintiff had knowledge, he having passed up and down the stairway many times each of those days in attending to his duties. On the evening of the happening which gave rise to the suit, he had gone over the stairs and later started to visit the room below which urns deep and lighted only by a dimly burning lantern. After descending four or five steps bis foot came in contact with the timber and from that cause he fell to the basement floor and was badly injured. These are the controlling facts as condensed from the plaintiff’s own testimony, and he was the only witness examined on the trial except as to the extent of his injury and damages. Plaintiff was thus left to tell his own story and has done so with apparent honesty, but the case he makes does not warrant his recovery.

If it be assumed that defendant was negligent in having the-timber on the stair, yet the doctrine of contributory negligence works the plaintiff’s defeat. The law classes as negligent, not only conscious imprudence, but also forgetfulness of and inattention to dangers which are both known and understood. — L. & N. R. R. Co. v. Hall, 87 Ala. 708; Wilson v. L. & N. R. R. Co., 85 Ala. 269; L. & N. R. R. Co. v. Banks, 104 Ala. 508

It cannot be doubted that the plaintiff knew the timber’s position and understood whatever danger attended a misstep upon or against it So far as the evidence shows he had no reason to believe it had been removed before the accident. Such danger as it created was obvious requiring no special experience or admonition to cause it. to be fully appreciated by a person of ordinary understanding, and by exercising the caution which his knowledge should have aroused, the plaintiff could have avoided the danger as he had theretofore done. His unexplained failure to shun the timber must be set down to that want of ordinary care which is the legal equivalent of negligence; and the law is that where negligence of both parties has cooperated proximately to produce au injury the courts will not attempt to decide whose was the greater fault.- — Frazer v. S. & N. Ala. R. Co., 81 Ala. 185; A. G. S. R. R. Co. v. Richie, 99 Ala. 346; North Birmingham St. R. Co. v. Calderwood, 89 Ala. 247.

Where the facts bearing on negligence are undisputed and are not susceptible of adverse inferences the question of negligence vel non whether relating to conduct of the plaintiff or defendant is properly one for the court. — C. & W. R. Co. v. Bradford, 86 Ala. 574; Wilson v. L. & N. R. R. Co. and L. & N. R. Co. v. Banks, supra.

The refusal to charge the jury affirmatively in favor of defendant according to its request, was error for which the judgment must be reversed. This view of the case makes it appear unnecessary to pass more specifically on the several assignments of error.

Beversed and remanded.