Southern Car & Foundry Co. v. Bartlett , 137 Ala. 234 ( 1902 )

HARALSON, J.

1. The complaint consisting of four counts, 1, 2, 4 and 5, is draAvn under subdivisions 2 and 3 of-the Employer’s Liability Act, Code section 1749. The first count stating that plaintiff Avas Avorking for defendant as a millwright engaged in repairing machinery- at the defendant’s plant in Anniston, Alabama, averred that Avhile “so working under one Arthur Bradley, as plaintiff’s foreman, to whose orders he Avas bound to conform and did conform in the work in which they Avere engaged, that said injury resulted from- his having so conformed to said orders.” After specifying the injury the plaintiff received, the count concludes: “That said injury was caused by the negligence of said foreman, aa-1io was in the service of defendant, and in the exercise of superintendence intrusted to him by -the defendant.” These averments are sufficient to bring the count well under the third subdivision of said "act, and the demurrer to it was properly overruled.” — K. C., M. & B. R. Co. v. Burton, 97 Ala. 240; Dantzler v. DeBardeleben C. & I. Co., 101 Ala. 309, 314; Bear Creek M. Co. v. Parker, 134 Ala. 293.

The fourth count is also sufficient in its averments to meet the requirements of said subdivision 3 of said act, and'was properly sustained as against the demurrers filed to it.

The fifth count does not state a cause of action within the statute. If the count was intended to make a case under subdivision 2 of the Employer’s Liability Act, it is had for the reason that, it does not aver that Bradley had any superintendence intrusted to him, or was negligent while in the exercise of superintendence. Considered with reference to subdivision 3, the count is also bad, because it does not aver that Bradley gave any order or what order he gave, or that he Avas negligent in giving the order, if he gave any.”

The second count appears to have been filed under subdivision 2 of said act. It alleges very fully that the injury to the plaintiff Avas caused by reason of the negligence of Arthur Bradley in the service or employment of the defendant, AAdxo had superintendence intrusted to him, Avhilst in the exercise of such superintendence. The demurrer to it Avas also properly overruled.

2. Each of the counts 1, 2, and 4, Avere as full in1 the aArermonts of the: negligence of the defendant’s employe, Arthur Bradley, as is required. They each set forth a substantial and legal cause of action. We have frequently held that very general aArerments of negligence falling but little short of mere conclusions, meet, the requirements under our svstem of pleading. — Mary L. C. & R. Co. v. Chambliss, 97 Ala. 171; A. G. S. R. Co. v. Davis, 119 Ala. 572; Armstrong v. Montgomery S. R. Co., 123 Ala. 233; C. of G. R. Co. v. Foshee, 125 Ala. 200; B. s. R. Co. v. Cuzzart, 133 Ala. 262; 31 So. Rep. 979; B. C. M. Co. v. Parker, supra; M. & O. R. Co. v. George, 94 Ala. 214.

3. It is assigned as error, that the court permitted, the plaintiff, against the objection of defendant to testify, that he; was discharged by defendant from his position as blacksmith, — which position he held after his finger was cut off, — on the ground that he was too slow.

The plaintiff had testified, that before he went to work for the company, his business was that of a blacksmith; that the loss of a part of his finger decreased his earning capacity in that profession; that he had not been able to make as much per day since he received, his injury; that he easily earned from $3 to $5 per day before he: went to work for the company; that the part of the finger mashed off, was the part of it- that-worked in the handle of the tongs and such like tools, and the loss of it made it difficult to handle such tools; that it made him slow and clumsy with his work, as he had often to stoop over and pick up a piece of iron with both hands, on account of the loss of the finger, and that his earning capacity had thereby been decreased by about one-fourtli. He also testified, that since his injury he; had worked for defendant as a blackmith, and received $2.50 per day, and defendant had paid his $3 per day before his injury.

There was no error in allowing this evidence to go to the jury, in connection with all the evidence, as tending to show the nature and extent of the injury plaintiff received. If it caused him to be slower and less efficient, in his earning capacity, as it tended to show, it was competent to he considered for that purpose. The fact that defendant gave the plaintiff employment at $2.50 a day after his injury, and then discharged him because he was too slow with his work, was in corroboration of plaintiff’s testimony, that the injury decreased his earning capacity as a blacksmith, in that it made it troublesome for him to handle his tongs and thereby disable him to do the same amount of work, and was less efficient in his earning capacity, since than before the injury.

Nor was there error in allowing the plaintiff to testify, that so far as he could see, it was not dangerous to take out the holts that held the pulley to the shaft-mg. Plaintiff liad testified that Bradley had told him to take the bolts out. In defendant’s 6th plea, it was set up, that plaintiff contributed próxima,telv to his injuries by taking out these bolts, when he knew or should have known that by so doing,, the shafting and pulley would fall. He had just testified that he did not know the shafting was broken until it fell and cut his finger off, and it was not illegal for him to testify as a fact, that so far as he could see it was not dangerous to take .out the bolts without tieing up the pulley. It was certainly not incompetent to deny knowledge of a fact with -which, as a matter of defense, he was charged by defendant.

4. The court gave 15 charges for the defendant, and all that were requested except the affirmative charges. The plaintiff requested no charges. Those given for defendant covered, and were intended to apply to, the different phases of defense set up by defendant. The affirmative charges were properly refused, since there was direct conflict in the evidence on material issues offered by the plaintiff and the defendant.

For the error in overruling the demurrer to the 5th count, let the judgment be reversed and the cause remanded.

Reversed and remanded.