Sloss-Sheffield, Steel & Iron Co. v. Hutchinson , 144 Ala. 221 ( 1905 )

ANDERSON, J.

The complaint in this case avers that the engine was defective, thus particularizing what part of the ways, work, machinery, or plant was defective, and need not have specified what particular part of the engine was defective. The demurrer was properly overruled. — Mary Lee Coal & Ry. Co. v. Chambliss, 97 Ala. 171, 11 South. 897; Bear Creek Mill Co. v. Parker, 134 Ala. 293, 32 South. 700; A. G. S. R. R. v. Davis, 119 Ala. 572, 24 South. 862; Southern R. R. v. Guyton, 122 Ala. 231, 25 South. 34. The rule declared in the case of L. & N. R. R. v. Jones, 130 Ala. 456, 30 South. 586, is not in conflict with the foregoing authorities. There the count that was condemned failed to specify what part of the appliances used by the defendant to get said car upon the track was defective, as many appliances may have been used in the act or attempt.

The second assignment of error is. as follows: “The court erred in overruling defendant’s objection to the following question, ‘Would an engine speed up that way unless that defect existed?’ ” The record shows that the defendant, objected to this question, but assigned no-ground, and does not show that defendant excepted to the ruling of the court. After the answer the defendant moved to exclude same, and excepted to the ruling of the court in refusing to- exclude, but the action of the court upon the motion to exclude is not complained of in the assignment of error. There was no error in permitting the defendant to testify that- he had to oil those parts? where he was oiling. It was not a mere conclusion of the witness, but was- a narrative of a part of his duties, and as he had charge of the engine he was certainly competent to testify and give his opinion as to- whether or not certain parts of the engine needed oiling. If there was any evidence -tending to support the material averment of the complaint, then, unless the- evidence conclusively and as a matter of law supported the special pleas, the general affirmative charge for the defendant should not have been given. — Southern R. R. Co. v. Shelton, 136 Ala. 191, 34 South. 194, and cases there cited. In the case at bar the plaintiff testified: “While I was running the engine something got the matter with it; the governor hung up, and caused it to speed up, and when they would stop it would cause the engine to speed up quickly, and if the air was low it would run away. * * * I reported that difficulty to the master mechanic, and he told me he would have it fixed.” The plaintiff also testified that “‘an engine would not suddenly speed up that way unless that- defect existed. There was something in thu governor that was corroded, or something like that.” It will be observed that the plaintiff testified not only to the hanging up of the governor and the action of the engine the night he was injured, but that the same thing happened previous thereto, and which fact he reported to the master mechanic. It is very clear that the existence or non-existence of a defect was a question for the jury, and the trial court properly refused charge 1. The case relied upon by counsel for appellant (L. & N. R. R. v. Binion, 98 Ala. 570, 14 South. 619), wherein it was held that the general charge should have been given for the defendant because of no proof of a defect in the brake, is unlike the case at bar. The plaintiff in that case testified that a short time before the accident he himself put on the brake, and that he found no- difficulty in doing so; that he put on the brake on that particular car, and did not see anything wrong with the brake. Besides, in the Binion Case, supra, the opinion indicates that the defendant was entitled to the general charge, even if the brake was defective,' as the proof failed to show that the defect, if one did exist, was the proximaté cause of the fall.

Charge 2 was properly refused. It was misleading in view of the fact that it left out of consideration the tendency of the evidence as to defects in the governor.

Appellant does not insist on a consideration of charge 8.

Charge 4 was argumentative. It also tells the. jury they may apply their “observation and experience in life.” Jurors can apply their common observation and experience, or an experience only common to ordinary men.

Charge 6 was properly refused. The defendant’s plea of contributory negligence charges the plaintiff with negligently exposing his hand to the danger of being caught, and seeks to hold him responsible for the position he occupied. He may have occupied a negligent position, and still not have negligently exposed his "hand.

A majority of my brothers think that charge 7 should have been given, and that its refusal is reversible error. They think that, although the plea confines the plaintiff’^ negligence to tlie exposure of his. hand, it was broad enough to cover the charge, inasmuch as he was hurt while oiling the engine, and that he was oiling it by the use of his hand. The writer does not think that the case should be reversed for the refusal of the charge. The defendant in its plea confined the contributory negligence to a single point, that of “negligently exposing the hand,” and the charge seeks to relieve the defendant as to any negligence in and about the manner of oiling the engine. The charge has a misleading tendency, and the jury might infer therefrom that they could not find for the plaintiff, if he was guilty of any negligence at all in oiling the engine, even if h.e did not negligently expose his hand. Before a case should be reversed for giving or refusing a written charge, it should plainly appear that the trial court was in error, and, if a charge is refused which has a misleading tendency, the lower court should be upheld for refusing the same. “Contributory negligence is a special and affirmative defense. To be availed* of, it must be pleaded with particularity. And no other acts of negligence than those specially pleaded can be proved, and, if proved, they cannot be made a predicate for a verdict for the defendant.” — Southern R. R. v. Shelton, 136 Ala. 191, 34 South. 194; Alabama Midland R. R. v. Johnson, 123 Ala. 197, 26 South. 160; Birmingham R. R. Co. v. City Stable, 119 Ala. 615, 24 South. 558, 72 Am. St. Rep. 955. Justice Denson concurs with the writer as to said charge 7.

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

Eeversed and remanded.

Haralson, Tyson, Dowdell, and Simpson, JJ., concur. Anderson and Denson, JJ., dissent.