Reiter-Connolly Mfg. Co. v. Hamlin , 144 Ala. 192 ( 1906 )

SIMPSON, J.

This is an action for damages on account of the death of appellee’s intestate, who was an employe of appellant.

The first assignment of error insisted upon by counsel for appellant is that the court erred in overruling the demurrer to the ninth count of' the complaint. There was no error in this action of the court; said count distinctly alleges the facts necessary to constitute negligence, in accordance with the decisions of this court. Conrad v. Gray, 109 Ala. 130, 19 South. 398; Ensley Ry. Co. v. Chewning, 93 Ala. 24, 9 South. 458; L. & N. R. R. Co. v. Hawkins, 92 Ala. 241, 9 South. 271.

Count 10 shows the relation of the parties, states that the injury resulted from the act of some person in the service, etc., describes what that act was, states that it was done “in obedience to the particular instructions” of A1 Reiter; that he was delegated with the authority of ‘the defendant; and that he was negligent in giving the instructions. It was not necessary to give the name o^ the person who slackened the chain. The gravamen of the charge is that Reiter was negligent in giving the order, and it matters not which employe obeyed the or-d~r, if it was done in accordance with the order of Reiter. The particular instructions given by Reiter are plainly stated, to wit, “to slacken said chain.” This court has frequently held, in similar cases, that it is not necessary to aver in what particular or respect the orders or directions were negligent. The general averment that the aiders “were negligently given” covers the case, and : ails for evidence to show the circumstances, so that it can be determined whether it was negligent to give the • :xler. — M. & O. R. R. Co. v. George, 94 Ala. 199, 214, 10 South. 145, and cases supra. In the case of Decatur Carwheel, etc. Co. v. Mehaffey, 128 Ala. 242, 29 South. 646, the pleader undertook to state the particulars which constituted the negligence of the order, and the court T'cided that those facts did not show negligence per se. ncl in the case of Postal Tel. Co. v. Hulsey, 115 Ala. 193, 203, 22 South. 854, the trouble was that the act or ('mission of the party which caused the injury was not alleged to have been in obedience to the particular instructions of any one “delegated,” etc.

Count 12 sufficiently states a cause of action, under subdivision 2 of section 1749 of the Code of 1896.

Referring to thé action of the court in sustaining demurrers to certain pleas setting up contributory negligence on the part of the plaintiff: the negligence which it was alleged the plaintiff was guilty of was, in substance, that he remained under the block, after he had been warned that it was dangerous and liable to fall. The pleading shows that it was not claimed that these warnings were verified, by the falling of the block resulting from its being liable to fall, in the condition in which i t was when the warnings were given, but that it fell by the intervening of another cause, to wit, the negligence of some one in the employ of defendant, who slackened the chain which was holding the block in place, thus causing it to fall. If a person chooses to be negligent, and to assume the risk of one danger, which is pointed out to him, it does not necessarily follow that he is guilty of contributory negligence as to another danger which arises from the intervention of some act of which he did not have notice. “As to dangers arising through other sources, dangers which he was not bound to anticipate, and of whose existence he had no knowledge, he took no risk, and assumed no duty of taking care.” — Smithwick v. Hall & Upson Co., 59 Conn. 261, 269, 21 Atl. 924, 12 L. R. A. 279, 21 Am. St. Rep. 104; Gray v. Scott, 66 Pa. 345, 347, 5 Am. Rep. 371. As stated by Judge Cooley, and quoted with approval by this court: “If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to- the last proximate cause, and refuse to trace ft to that which was more remote.” L. & N. R. R. Co. v. Quick, 125 Ala. 561, 28 South. 14. Consequently the demurrers were properly sustained to said pleas. As to those pleas which may be construed as alleging contributory negligence in regard to the danger of the falling of the block after it had been released by the loosening or slackening of the chain, the demurrers were overruled as to pleas 23, 25, and 32. So, the defendant had the full benefit of that defense.

The next assignment insisted on in the brief of appellant is that the court erred in permitting appellee to propound to the witness R. H. Williams the question, “What wages was your brother getting at the time of his death?” and in refusing to exclude the answer thereto. There was no error in this. In arriving at a conclusion as to the prospective value of the services of the deceased, it was entirely proper to inform the jury what wages he was earning at the time of his death; and, if there were any extraordinary circumstances existing then, so that the amount which he was receiving then was not a proper criterion, the defendant could have brougli forward evidence of the same for the consideratin of the jury.

Astlie complaint charged the negligence of A1 Reiter in loosening the chain which held the block, it was material to show that he had directed the rise of the block in that way so that he knew what would be the probable consequences when he gave the order to slacken the chain.

The objection to the question to the witness' Renfro, “What appreciable time elapsed from the time Reiter gave the order to slacken until deceased was struck by the block, and did he have time to get away?” was properly overruled. Even if it be admitted that the latter part of the question was objectionable, and that the rule is that, if a part only of the question be objectionable, the general objection is properly sustained (Matthews v. Farrell, 140 Ala. 298, 37 South. 325), yet the question .seems to call rather for a statement of collective facts, based on the knoAvledge of the witness of all the circumstances. — Rollings v. State, 136 Ala. 126, 34 South. 349. The Avitness could certainly come nearer stating whether the -time after 'the giving of the order was sufficient for the deceased to have gotten away, than he could the exact time Avhich elapsed, and the jury would thereby have a better practical understanding of if than they could gain by making a mathematical calculation based upon the laws of physics in regard to the time consumed by a falling body.

The objection to the question to the witness Renfro, “Could the column have straightened in this way, by swinging the line as you have staled, without slackening the chain?” was properly overruled. The witness had been shown to he a structuarl iron workman of 15 or 16 years’ experience, and was competent to express an opinion on that subject, and, besides, he had already testified, without objection, that by using the line and swinging the column in the manner referred to “it would swing the top of the derrick around and straighten the column without slackening the chain.” His experience also qualifiecl him to state what position it was necessary for deceased to occupy in order to. perform his duties.

The objections to the questions which were asked for the purpose of impeaching one or the other of the Williams witnesses were properly sustained, as they did not identify the witness. Appellant insists that an affirmative answer would have impeached both witnesses; but this is not correct, for proof that one of them heard the other make the statement would not impeach him, as it is not material to this case whether or not he did hear it. The only thing that would impeach either of them Avould be proof that he had made the statement which he denies making.

The court erred in excluding that part of the testimony of the Avitnesses Gilchrist and McDaniel “that Williams could have stood out from under the block where it Avould not have fell on him, and equally as well performed the Avork he was performing Avhen the block fell and struck him.” In vieAV of some of the counts and parts of the evidence it Avas material to show whether there was a safe AAmy of doing the Avorb, and it cannot be said that the statement of what the witness would SAvear was not a part of the evidence submitted to the jury, as it appears in the bill of exceptions as a part of the evidence under the statement that- it was admitted that said witness would so testify.

Referring to the forty-eighth assignment of error, relating to the court’s definition of negligence: If it vras merely misleading, as contended by counsel for appellant, Ave could not declare it error, as appellant might have requested explanatory charges. Besides, in considering a part of the charge of the court, it must be taken in connection with the remainder of the charge. Under the facts in this case, and in connection AAdth the entire charge of the court, we cannot say that there was reversible error in this definition of negligence. While it is not an exhaustive definition, yet, on a review of the numerous attempts of courts and textwriters to define negligence, it seems to be almost impossible to give a definition in one sentence which will cover the conditions of every case. In an illustration given by counsel of a man on the brink of a stream omitting to exert himself to save the drowning man, it could not be said to be a wrongful omission, because no legal duty rested-upon him to do anything; nor could the drowning be said to be the result of said omission, because the omission did not cause the drowning.

That portion of the charge referred to in the fiftieth assignment of error referred to the allegations in counts 5 and 11, and the court adjourned during the progress of the charge, and on the second day stated to the jury that counts 5 and 11 had been eliminated, and that the charge given with reference to them was withdrawn. So, it is unnecessary to further consider this assignment.

Taking the other parts of the court’s oral charge, excepted to as before stated, in connection with the entire charge, we find no reversible error, except in that part referred to in the fifty-fifth and fifty-sixth assignments, on the subject of the measure of damages. The true measure of damages in such cases is, as heretofore declared by this court, that which gives such sum as, being put to interest, will each year, by taking a part of the principal and adding it to the interest, yield the amount of the deceased’s yearly contribution to his fajjaily less his personal expenses, and so that the whole remaining principal, at the end of his expectancy of life, added to the interest on this balance for that year will equal the amount of his yearly contribution to his family, less his personal expenses. — L. & N. R. R. Co. v. Trammell, 93 Ala. 350, 355, 9 South. 870; Decatur Co. v. Mehaffey, 128 Ala. 242, 29 South. 646; Ala. Mineral R. R. v. Jones, 114 Ala. 519, 21 South. 507, 62 Am. St. Rep, 121; Mayfield’s Dig. p. 264, § 24.

As applicable to the testimony in this case, charge 2, given on the request of the plaintiff, was correct; the assurance claimed to have been given by the representative of the master being, that he would hold the strain on the chain until deceased got from beneath the block.

Charge 4, given on the request of the plaintiff, was not erroneous. The words, “considering his surroundings, at the time, did he exercise such reasonable care for his own safety as would be expected of an ordinarily prudent man,” are equivalent to hypothesizing it on “one similarly situated,” and, if defendant considered it misleading, it could have asked an explanatory charge.

Charge 6, given at the request of the plaintiff, was not erroneous. If Reiter was powerless to prevent the slackening of the chain, then it could not be said that he “negligently” allowed said chain to be slackened. It was a matter for the jury to consider, under all the circumstances, as detailed in the evidence, whether he was negligent in allowing said chain to be slackened.

Charge 12, requested by the defendant, was fully covered by charge 45, which was given at its request.

Charge 13, requested by the defendant, was fully covered by charge 50, which was given at its request.

Charge 14 is substantially covered by charge 43, given at the instance of defendant.

Charge 17, requested by the defendant, was properly refused. It was not hypothesized on the jury’s finding, as a fact, from the evidence, that the block did fall because of the fact that the chain was slackened by the column having rested on the base, and, further, that he remained under it after knowledge of the fact that 'the chain had been slackened.

The form of charge 21, requested by defendant, has been frequently condemned by- this court, and it was properly refused. — Goldstein v. Leake, 138 Ala. 573, 36 South. 458.

The court cannot be placed in error for refusing to give charge 22. requested by the defendant. It was calculated to mislead the jury to the conclusion that the burden of proof was on the plaintiff, even as to the matter of contributory negligence.

The substance of charge 27 requested by defendant, was given in charge 50', at its request.

Charge 28 was properly refused. It does not hypothesize the fact that the falling of the block was caused by the resting of the column on the base. It might have -fallen at any time from the negligent slackening of the chain under the orders of Reiter.

The idea presented in charge 31 is more correctly given in charge- 41. It is also- defective in not stating from what cause the block did fall, and in ignoring the testimony of the assurance of the superintendent.

Charge 32 is subject to the same objection.

Charge 33 does not state that a sufficient time elapsed after deceased had notice that the chain ivas being slackened, and before he was struck, for him to get out of the way.

Charge 34 was covered in substance by charges 39, 42, and 43, which were given at the instance of the defendant.

Charge 35 was substantially the same as charge 45, which was given at the request of the defendant.

Charge 37 ivas substantially covered by charge 50, which was given on request of defendant.

Charge 38 is defective, because it ignores the assurance of the superintendent that he would keep the block from slipping.

There is no force in the contention of appellant that the general affirmative charge should have been given in favor of defendant because of the invalidity of the grant of letters of administration, as set up in plea No. 3 1-2 both because that matter could not be inquired into collaterally, and because the claim upon which this suit was brought was sufficient assets to justify the appointment. — McGhee v. Willis, 134 Ala. 281, 290, 32 South. 301; Hutchins v. St. Paul, etc., Ry., 44 Minn. 5, 46 N. W. 79; Brown v. L. & N. R. R. Co., 97 Ky. 228, 30 S. W. 639; Findlay v. Chicago R. R., 106 Mich. 700, 64 N. W. 732.

The next insistence of appellant is that the verdict was excessive. The evidence showed that the deceased, at the time of his death, was earning $3.50 per day; that his hoard cost $3.50 or $4.00 per week; that he expended on clothing about $38 per annum; that he did not work all the time, but that when he was at work he sent his father and mother from $15 to $20 per month; also that he did not save any money,'and that his expectancy was 40 years. The Trammell Case and others, supra, have fully settled the measure of damages, in those cases, where there was a dependent family. Dr. James K. Towers, an able mathematician of this State, has very clearly explained the process by which the amount recoverable, according to these cases, can be readily worked out, and we here insert his table which simplifies the process.

Tables showing the worth of annuties of $1.00 have been made and published, but I have never seen such a table for a rate above 7 per cent. This is accounted for by the fact that in England and other countries, where annuities are popular, 8 per cent, is an unheard of rate. For this reason I give a table showing the “present worth” of an annuity of $101 (at 8 per cent.) up to 40 years:

If, in this case, we conclude that, inasmuch as the deceased recognized that his father and mother were dependent upon him by sending them a certain amount each month (which we think is the true theory of the case), then the amount which he appropriated to them did not exceed $20 per month, which, if he worked all the time, would be $240 per annum, and he evidently expended the remainder on himself, as it is shown he did not save anything. These being the facts, the amount recoverable in this case would be $2,861.88.

In those cases where the deceased had no dependents, so that it could not be ascertained what amount of his wages was probably devoted to them, a rule a little different from that fixed in the Trammell Case has been used in ascertaining the value of the life, to-wit, such a sum as at legal interest would produce, at the expiration of the expectatucy of the deceased, an amount equal to big probable net earnings during that period, based on the amount- of bis earnings before, as sliown by the evidence. McAdory v. L. & N. R. R. Co., 94 Ala. 272, 275, 276, 10 South. 507. His net earnings, of course, are just what he saved out of bis wages. In this case it is shown that the amount set to his parents was all that he saved, so that, even supposing that he worked every day in the year, his net earnings, could not be more than $240 per annum, which in the 40 years would amount to $9,600, and the sum of $2,285.70 (and a small fraction of a cent) paid now, would, in a period of 40 years, at legal interest, produce the said sum of $9,600. It is evident then, that according to either method of computation, the verdict, in this case, was excessive.

The judgment of the court is reversed, and the cause remanded.

Tyson, Dowdell, and Anderson, JJ., concur.