Postal Telegraph Cable Co. v. Hulsey , 132 Ala. 444 ( 1901 )

HARALSON, J.

— 1. This action, for personal injuries, was brought under subdivisions 2 and 3 of section one of the Employer’s Liability Act. — Code, § 1749. On the former1 appeal (115 Ala. 193) it was correctly said, “The complaint, in the first three counts, is upon subdivision two, and, in the fourth and fifth counts, upon subdivision three of the Employer’s Liability Act. The three counts, in the first class, all show by proper aver-ments, that one Frank A. Cobb was, within the meaning of the statute, entrusted with superintendence ,and that the plaintiff’s injury occurred by reason of negligence on his part, whilst in the exercise of such superintendence. They show that defendant was engaged in building or equipping a telegraph line, removing trees, erecting poles, wires, etc., and that plaintiff, an employe, was injured by a tree falling on him, in the prosecution of this work, under the superintendence of Cobb.”

The court indulged a criticism of count one, in that, although the count is expressly based upon the negligence of Cobb, in the exercise of superintendence, under the second subdivision of said act, yet the wrongful act-charged was the negligent giving of an order, for which subdivision three provides, without alleging that plaintiff was bound to conform to the order. To this count a general demurrer was interposed, the overruling of which, on that account, was here sustained, the court stating that it would, “by the allowance of intendments, refer the negligence charged, to the second subdivision, under the general averment of negligence, in the exercise of superintendence.” ' When the case returned to the city court, the count was amended, by striking out the averment of the wrongful act charged in the negligent giving of an order, as provided by said subdivision three, to which plaintiff was bound to conform, and inserting in lieu thereof that said Cobb “told plaintiff tba,t be would watcli for him, and let him knew when it became necessary to leave the plaice where he was working so as to avoid danger from the falling of said tree or trees, and said Cobb negligently failed to give plaintiff such notice; and plaintiff avers that he went to chopping on said tree and continued to chop thereon, until it fell on him inflicting the injuries aforesaid,” etc. This averment cured the defect for which the count was criticised by the court, and brought it within the provision of said section two,—good against the demurrer interposed to it.—Postal Tel. Co. v. Hulsey, supra.

2. The defendant’s counsel in brief say that the several counts of the complaint are so similar, and many of the grounds of demurrer being the: same to' each count, we submit what we “have to say on the demurrers as. a whole.” In other words, the assignments of error as to the overruling the demurrers to the several counts are not separately considered by counsel, but they urge the same objection to each. These grounds as grouped and urged are :

1st. That it is not shown or averred in any of the counts that there was any duty resting on the defendant, or on Cobb, to keep watch or give warning or notice to plaintiff while so employed. This is a misconception of the statements of the several counts, which aver that Cobb, the superintendent, put plaintiff, who was subject to his instructions, to chopping upon a tree upon which another one had fallen and lodged, and when he put plaintiff to chopping, told him he would keep a lookout for him and give him notice when it would be necessary for him to leave, which he negligently failed to do, in consequence of which he was injured. Under such averments of facts, the duty to give the notice arose, as plainly as if it had been so averred. When the facts out of which a duty arose are averred, it is sufficient without averring the legal conclusion that the duty existed.—L. & N. R. R Co. v. Marbury L. Co., 125 Ala. 237.

2nd. It is insisted on demurrer that the counts in the complaint failed to show or aver with reasonable certainty, in what the negligence complained of consists. This is another misconception of the counts. They each show that when Cobb put the plaintiff to cutting down the tree, on which another had lodged, he promised him he would watch the tree and give him timely notice when it became necessary for him to leave. off chopping and get out of harm’s way; that Cobb failed to give such; notice; that the tree gave way and leaned from its upright position, and allowed the lodged tree to fall on and injure plaintiff. This seems to be a. very clear statement of the negligence complained of.

3rd. Objection is made that it does not appear by averment or otherwise that the failure; of Cobb to watch the tree, or to give warning or notice was the proximate cause of the injuries to plaintiff. It is submitted, however, that the counts, in so many words, set up the negligence of 'Cobb as the cause of the injuries.

4th. The fourth ground insisted on,—that the danger of chopping on the tree was, as patent to plaintiff as to Cobb or any one else,—is without merit. The counts do not. show such a fact, assumed in the objection, to be true. The promise of Cobb to keep watch and give warning when to flee from danger, negatives the assumption that the danger was as obvious to plaintiff as to Cobb. The very fact that it was not so obvious to plaintiff as to Cobb, gave rise to Cobb’s promise to keep watch and give warning.

5th. The fifth objection is that it is not shown, in the fifth count, that there was any superintendence vested in Cobb; that it fails to show any negligence in Cobb in ordering plaintiff to chop the trees, and fails to show he is not a fellow servant.” These objections are in plain contradiction of the averments of this count, which states that plaintiff was an employe of defendant; that Cobb was in the service and employment of defendant, and was foreman or superintendent, having in charge or superintendence, the plaintiff and the other hands working in connection with him, and also that he had charge and superintendence over the felling and cutting of trees along defendant’s said line,, which said superintendence had been entrusted to him by the defendant, and, like the other counts, avers the negligence of Cobb, and the facts constituting the negligence.

There was no error in overruling the demurrers to the several counts of the complaint.—Postal Tel. Co. v. Hulsey, supra.

3. Pleas A. B. and C. are the general issue. A demurrer, as shown by the judgment entry, was sustained to Plea E., but the demurrer is not set out in the transcript. When this is the case, the appellate court will presume some ground of demurrer ivas specifically assigned; and if the plea is bad, in order to sustain the ruling, the court will presume that the grounds of demurrer showing the vices of the plea Avere specifically assigned, and the ruling sustaining the demurrer will be sustained.—Hodye v. Tufts, 115 Ala. 366.

It is manifest the plea is bad. The fact that there was obAdous danger in chopping on the tree, and that plaintiff assumed the risk of so chopping, is not a full an-SAver to the complaint aaíiícIi avers that plaintiff Avas put to chopping on the tree by his superintendent, Cobb, on the promise of the latter, “that he Avould Avatch for him, and let him Iciioav AAhen it became necessary for 'him to leaAre the place Avhere he Avas Avorking, so as to avoid danger from the falling of said tree or trees, and said' Cobb negligently failed to give plaintiff such notice,” etc. The plaintiff might have knoAvn there Avas danger to chop and fell the tree, Avith another lodged on it, which might fall on and injure him, AAhen the standing tree began to lean and fall, unless some one Avatched to give him notice Avlien it began to do so; but Avith the promise on the part of the superintendent, Avho directed him to fell the standing tree, that he Avould stand guard and Avatch for him, and give him notice AAhen to escape the danger, he might Avell have been induced thereby to assume the apparent risk, with assurance that he could safely escape, if his superintendent faithfully fulfilled his promise. As stated, the plea does not aiisAver the entire complaint, and presented an imperfect issue thereon.

The case was tried on the pleas of the general issue and on issue joined on pleas D. and F. The last are pleas of contributory negligence of the plaintiff, and counsel for defense state that they are substantially the same. Plea I). sets up, “that AAhile cutting dovvn á tree 031 which a part of the weight of two other trees were resting, and when the tree on which he had been cutting gave indications of falling, the plaintiff negligently moved in the direction in which one of the trees was leaning, so that said trees fell on him, when by moving in another direction, he would have been safe from injury, and defendant avers that by so moving in the direction in which said tree was leaning, he placed himself in danger, and by so- moving, he negligently contributed, as defendant avers, proximately to his own injury.”

It is insisted that the facts of this plea were proved without conflict in the evidence, which justified the giving of the affirmative charge asked by the defendant and refused. Two facts are averred, however, to say' nothing more, which refutes this proposition. It is averred in the plea that “said trees fell on him,” the plaintiff, — reference being had to the standing tree, and the two others, which rested on this tree. The proof shows, without conflict, that the standing tree did not fall, and plaintiff ivas injured by one tree alone, — the one which had lodged'bn the standing tree, and which, when the standing tree leaned as if to fall, slipped from its fastening and fell on the plaintiff. The other fact-averred is, that by moving in the direction in which said (standing) tree was leaning, he placed himself in danger. The evidence shows, without conflict, that plaintiff retreated, west, from the tree on which he was chopping, -which tree was being chopped to throw it southward, and when it leaned, as if to fall, it leaned in that direction.

The plea marked F. is that “plaintiff undertook to chop and fell a tree on which another tree had lodged, which undertaking was obviously dangerous and known to be dangerous to plaintiff; and defendant avers that the plaintiff failed to use due care and diligence, to save himself from injury, but contributed thereto by'moving in a direction which was dangerous, when there was a safe way for him to go at the time said lodged tree began to fall, and by reason of plaintiff’s moving in such dangerous direction, said lodged tree fell on him, and lie was injured.” That tliis plea was not proved without conflict, will hereafter more fully appear.

4. The evidence on both sides shows that Cobb wa,s in superintendence of the work and had control of the plaintiff and his co-employes, and, at the time, was in the exercise of his superintendence. The plaintiff, with two other employes were directed by Oohh, to cut down a green pine tree, standing near the telegraph line. Another green pine, which stood on the north side of tliis tree, about twelve inches in diameter at the butt, had been cut down and lodged about 40 feet from the ground, in a fork of the standing tree', where a limb branched, out from its body, — some ten or fifteen feet of the top of the lodged tree, extending beyond this fork, on the south. After this tree ivas thus lodged, and in order to dislodge it, and bring it to the. ground, they cut another pine tree, of good size, Avhich stood to the east of the standing tree, and threw it on the lodged tree, some twenty feet from the ground, but it failed to knock down the tree that ivas lodged, but itself lodged on the other tree that ivas lodged. With the three trees in this position, the superintendent, Cobh, ordered the plaintiff and two other employes, Kimble and Need, to cut down the. standing tree, so that the three trees would be felled together, to the ground. Kimble and Reed took position to chop, and die! their chopping, on the north side of the standing tree1, the one with his hack to1 the east, and the other with his hack to the west, one cutting right, and the: other left-handed. The plaintiff stood on the south side of the tree, with his back to' the west, and there did his chopping. The tree ivas cut by plaintiff with kerf on the south, with the view of throwing it in that direction. These three choppers testi-fiéd, and it is not disputed by defendant, but admitted by Cobh, that when he put them to cutting on the tree, he told them that he would watch or keep a lookout, and give them warning when to get out from, or escape, danger. Kimble testified that if Cobb gave any notice that the tree was about to fall, he did not hear him; that he might have given it, without his hearing it, but he was listening out to hear, but did not hear him. Reed testified, on the same subject, “A man standing like Oobb was, 40 or 50 feet away, on the north side, could tell by looking at the 'top of the tree when it was going to fall, before I could tell anything about it, at the bottom. Mr. Cobb didn’t give me any notice at all about that.” The witness was asked, “Did Cobh give you any notice that the tree was falling, or going to fall?” Answer, “No, sir; he did not.” On the cross he was asked, “Did you say, that Cobb didn’t give you any notice, or do you say that you didn’t hear him give you any notice?” A. “No, sir; lie never gave me any notice. I know he didn’t sa.y anything about running, or anything of that kind. I say he didn’t give me any notice. I swear positively he did not say anything about running. I know he didn’t say it.” When asked again, if he had not said, he did not have the notice to run, he replied, “Of course, I did not hear it. I mean that he did not give it.”

As to the question of notice, the'plaintiff testified:. “The lodged tree fell while I was chopping on the standing tree. Mr. Cobb did not give any notice that it was going to fall. He did not sa.y anything to me at all, after I went down there and commenced chopping, before the tree fell. The first thing that attracted my attention that the tree was going to fall, or anything like that, I heard something like a screeching or noise, or scraping or something of that kind up the tree, and I remember making one step to get out of the way. 1 couldn’t, tell which tree was going to fall. I remember making one step to get out of the way. I whirled one step to the west, and as I did, the tree caught me. * * -- When T heard the screeching, if anybody had hollered to me, I couldn’t have run away quicker than I did.”

Kimble further testified that the first knowledge he had that the tree was falling, or going to fall, he heard it slip above him, and it fell just as quick as it could fall 40 feet, that he whirled and ran east as soon as he heard this noise; that the standing tree had been cut some four or five inches on each side, and that a tree cut in that way would show at the top that it was swaying or swinging, when it would give no such indications at the butt, where it was being chopped; that Cobb or any one else, standing where lie was (some 40 to 60 feet away from the tree) at the road, and there was a gradual movement of the standing tree, south, could fell the swaying of 8 or 10 inches of the standing tree; that any man if watching for it, could see that the lodged tree, if it kept slipping, was getting shorter and shorter, lie further* testified that if plaintiff had stood still, or gone east, he would not have been hurt, as the lodged tree fell some six feet west from the one standing. lie also testified that aaTlchi he heard the noise in the top of the tree, he could not tell what was going to fall. The evidence shows that this standing tree moved, as if to fall, several feet,—some 5 or 6,—and Cobb himself testified that he did not know how far the'leaning tree was from the body of the standing tree, when he hallooed to run, hut he, would say from 2 to 3 feet.

lived,' as to this matter,' testified that when he heard the screeching noise above, he did not Avait for Cobh 'to give Avarning, but be and the others ran; that he Avas experienced in such matters, and, — to' use his language, “All trees fall different. In a lodged tree like this one Avas, Avith 8 or 10 inches sticking over the fork, it would take it. a. minute or a. mi mite and a half to slide out of the fork, because it aa-ouUI be (or have) 8 to 12 inches to slide, as Avell as the thickness of tin? tree at that point. If the standing tree Avas 20 inches at the butt, it AA'ould be at least 12 inches a.t the fork. The lodged tree couldn’t start, right at once. If the standing tree was cut as described, 7 or 8 or 9 inches on one side, and 4 or 5 on the other, if it Avas cut enough for this (lodged) tree to slip off up there, and then (the standing tree) not fall, it would he liable for it to show it a minute or two beforehand, and maybe three minutes, because, if it was a. tree that Avould spring enough, to let that 8 inches out, and the thickness of the standing tree, and then the (standing) tree not fall, it would be more than a minute, or at least a minute. Now, if it had sprung some and popped off, that would let the tree fall quicker, in either case, (and) he (Cobb) could detect it in time to holler a dozen times for the men to get out of the Avay. I have done it a many a time after the tree bad popped. And another thing, — when the trees were lodged as these were, no man on earth conld tell, which way those trees were, going to fall. * * * With a lodged tree against a standing .tree,and a cross tree on the lodged tree, the standing tree is liable to fall any way.” After the lodged tree fell, the one standing recovered from its. leaning of some 6 feet and righting itself, stood upright again.

On the other side, Cobb testified that he kept watch as promised; that the first thing that indicated to him that the tree was going to fall, was that the standing tree began to give way; that he heard no noise at all, that when he hallooed to run, the leaning tree was 2 or 3 feet from the standing tree; that, if he was not mistaken, he told them to run to his left, — east; that he had them cut some bushes down, so that Avilen he hallooed to them to run, they could get out, and he did not utter any other word except “run,” at the time the tree began to fall. Other witnesses for defendant corroborated Cobb.

The evidence of the plaintiff is in conflict with Cobb’s,, that he told the men to run to the east, and is in denial of his having told the choppers to cut the: bushes down,, so that they could run out of the way.

5. We have, at considerable length, set out the evidence, in order1 that, its application to' the .averments of tine complaint charging negligence in defendant’s superintendent, on the pleas of contributory negligence, and on the general affirmative charge and other charges requested by defendant and refused, may appear. Prom this evidence it will be seen that the general charge as. to the question of negligence alleged, and as to plaintiff’s contributory negligence, could not have been given. If Cobb did not give the notice of the first approach of danger which he engaged to give, when he ordered the plaintiff and his co-employes to- fell the tree, it is admitted, the defendant is liable, unless the evidence establishes negligence of plaintiff, which contributed proximately to his injury. The evidence as to- whether Cobb gave timely notice for plaintiff to- escape danger, if he did give any notice at all, and on the fact whether he did, even, give any notice, is in conflict. These questions were properly left to the determination of the jury.

It is urged that plaintiff contributed proximately to his own injury, and the court should have so charged as a matter of law.

In the first place, it is sa.icl, plaintiff assumed the risk when he went to do the chopping on the tree. It is shown that the work undertaken was not unusual, but such as often occurred, without injury to any one in the performance of the necessary undertaking of felling trees standing so near to the telegraph line as to endanger it, from their being blown down. That the work was attended with some risk, if due care were not taken in its performance, is not denied. It may be stated as the correct rule ,that an employe assumes such risks as are ordinarily incident to the service he undertakes to render; but he does not assume extraordinary risks, caused by the negligent breach of duty on the jiart of the employer. — 3 Elliott on Railroads, § 1288. That author states the rale thus “The authorities require the conclusion that the employe assumes all the risks of the service in which he voluntarily engages, except such as arise from negligence on the part of the: employer, so that in whatever form the question may arise, the general rule must be, that risks of the service shall not be increased or caused by the employer’s negligence, but risks not increased or caused by the employer’s negligence, are risks of the sendee which the employe assumes. The question is not danger but negligence on the part of the employer.”—3 Elliott on Railroads, § 1290; L. & N. R. R. Co. v. Stutts, 105 Ala. 368.

In Birmingham R. & E. Co. v. Allen, 99 Ala. 359, 372, following the English decisions on their Employer’s L. Act of 1880, which ours substantially, though not exactly, follows, it is said: “It would appear as the settled construction of the English courts, that mere ‘knowledge is not a conclusive defense in itself. But when it is knowledge under circumstances that leave no inference open but one, viz., that the risk has been voluntarily encountered, the defense is complete;’ that ‘plaintiff may recover unless the circumstances were such as to warrant a jury in coming to the conclusion that the plaintiff freely and voluntarily, with full lmowldege of the nature and extent of the risk he ran, impliedly agreed to incur it.”

Under the facts disclosed, it cannot be said, as a matter of law, that the risk of plaintiff in attempting to fell the tree was not increased by the negligence of superintendent, Cobb, who ordered him to do the work, under promise to watch and warn him of the first indications of danger, or, that he voluntarily assumed it, disconnected with and without reference to, and reliance on the promise of .the superintendent.

6. Defendants counsel insist that Cobb’s promised warning was unnecessary to be .given, since plaintiff apprehended and understood his peril, without it, and fled the wrong way as soon as he could have done, even with the warning. This insistence cannot, under the evidence, as a matter of law, be sustained. The jury might well have believed, for the fact was open to1 such an inference, that Cobb saw indications, or inighthave seen them if performing his duty, of the swaying or leaning of the standing tree, as if to fall, before plaintiff heard the screeching, and that, if he had given the warning as soon as the tree began to lean, the plaintiff might have escaped unharmed.

7. Again it is said, the plaintiff negligently went in the way of danger, when there was a safe way of escape for him. It is not denied, if plaintiff had stood • still, or had escaped to the eastward, he would not have been injured. But the plaintiff, from the failure of Cobb, to give the promised warning, if he did so fail,—a question not free from conflict,—found himself in a position of great and impending peril, against the approach of which, as the evidence tends to show, he was •looking for warning in time to escape. He heard no warning from Cobb, as he and the others with him testify, and the first thing he and they knew, he heard a screeching above their heads, indicating to them the falling of the lodged tree, and suddenly they ran to escape the'danger. One exposed to sudden and unexpected •danger is not responsible for acting without judgment, or wildly, and whether he so acted, depends materially upon the facts and circumstances of the case. The proper inquiry is, considering his surroundings at the time, did he exercise such reasonable care and diligence as would be expected of a prudent and reasonable man under similar conditions.—R. & D. R. Co. v. Farmer, 97 Ala. 141; L. & N. R. Co. v. Orr, 91 Ala. 548. On the former appeal in this case it was said as to a charge requested by defendant, — that “In the absence of orders from Cobb as to what direction Hulsey should run, it was the duty of Hulsey to run in a safe direction, if the jury find from the evidence there was a safe way to run,” — “that the charge made it the absolute duty of the plaintiff to run in a safe direction, if there was one, without regard to the circumstances under which he was called to act, and whether he acted as a reasonably prudent and cautious man would, or might naturally have acted, or not. The plaintiff could not thus be made, absolutely, an insurer of safety in the direction he might take to avoid the danger.”

8. The part of the oral charge of the court excepted to is wrested from its connection in what preceded and followed it on the same subject, and of which the excepted portion was a part,—what preceded and followed the excepted part being material to and in elucidation thereof. If necessary to sustain the part excepted to, to consider the immediate connection in which it was said, it would be proper to do so. Thus considered, we find no fault with it. Moreover, the part excepted to consists of two or more paragraphs. Each of them is not bad, which must be the case to condemn the whole. The court, if any portion of it was erroneous, Avas not bound to separate the legal from the illegal.—Hawkins v. Hudson, 45 Ala. 482; L. & N. R. Co. v. Hurt, 101 Ala. 36; Bonner v. State, 107 Ala. 97.

Charges 1, 5, 8, 11, 15, N, are scarcely insisted on in argument. Be that as it may, from what has been said, their respective faults will appear.

Charge 10 is not insisted on. Charge O seems to be in the same category with charges 8 and X. Moreover, there is no insistence on it by counsel, further than to say it ought to have been given.

Charge-marked S was properly refused. Title transcript shows that during the time the plaintiff was eon-fined to his bed from his broken leg, and not able to sit up, he had something like colic one night, accompanied with vomiting; that he went to turn over on his side, to keep from vomiting on his bed, and he felt something like a sting in his thigh, and that when the doctor came, he filled some bags with sand and placed them on each side of his thigh. The evidence tended to show that at that time the leg was re-broken, or the fracture disunited after it began to unite. It is not- pretended that the leg was re:-broken, by any conscious fault of the plaintiff; but if re-broken, it was a natural result, or one liable to happen flowing from the cause of its being broken in the first instance, having immediate and causal connection therewith. But for the original breaking, the re-breakage could not have occurred.—Western R. of Ala. v. Mutch, 97 Ala. 194; 16 Am. & Eng. Ency. Law, 431, 436; Thompson v. L. & N. R. R. Co., 91 Ala. 496.

We have considered all the errors assigned, insisted on in argument, except the motion for a new trial, and we do not discover any reason for interfering with the action of the court in overruling it.

Affirmed.