Jones v. Union Foundry Co. , 171 Ala. 225 ( 1911 )

SIMPSON, J.

This action is by the appellant against the appellee for damages resulting from an injury to the eye of the plaintiff while working as an employee of the defendant in its foundry. The gravamen of the complaint is that the roof of said foundry was defective, so that it leaked, and the sand in the gangway became wet, and that another employee, after pouring the molten iron into the flask, threw what remained in the ladle (“as was the custom which was known to defendant”) on the wet sand in the gangway, causing an explosion which resulted in the injury to plaintiff’s eye.

The first count is based on a defect in the ways, works, machinery, or plant (to wit, the leak in the roof), and the second claims for the failure of defendant to furnish a safe place in which to work. The assignments of error relate only to the refusal to grant a new trial, taking up in order the errors claimed in the giving and refusing of charges.

There was no error in the giving of charge 2 at the request of the defendant. It asserted a correct principle of law, and it is not evident to the court that the jury was misled thereby. This court has so often declared the law with regard to misleading charges that, even if this charge was misleading, which we do not decide, it is unnecessary to cite authorities.

There was no error in giving charge 6 at the request of the defendant. The appellant claims that the use of the disjunctive “or” renders it faulty. The absence of the “or” and the substitution of “and” would have made it faulty, but the “or” showed that the plaintiff was not required to prove both counts, but only one of them. The charge'did not require'the jury to find for the defendant if every member of the jury was not reasonably satisfied, but only thát they could not find for the plaintiff.

There was no error in the giving of charge 7 at the request of the defendant. The expression, “all of the risks necessarily incident to the work,” made the charge stronger in favor of the plaintiff than if it had stated that the plaintiff assumed the “ordinary risks naturally incident to the work.” The charge in St. L. & S. F. R. Co. v. Phillips, 165 Ala. 504, 51 South, 638, 643, was held to be too broad, because it held that the defendant assumed “all the risks and dangers incident to working on a locomotive,” whereas, under the statute, he does not assume the risk of a fellow servant who is in charge of the locomotive. This court has held that omission of the word “ordinarily” from a similar charge did not render it improper, even though the dangers were not described as those necessarily incident, —Williams v. Anniston Elec. Co., 164 Ala. 84, 51 South. 385, 386, 388. The present charge is more favorable to the plaintiff than charge F, in the case just cited.

Charge 8 also is more favorable to the plaintiff than it would have been if the word “reasonably” had been inserted before the word “satisfies.” Therefore there was no reversible error in giving charge 8.

There was no error in giving charge 9, at the "equest of the defendant. There can be no doubt as to the fact that Will Dennis was the fellow servant of plaintiff, for whose negligence the defendant is not liable, and it follows that, if the act of said Dennis was the proximate cause of plaintiff’s injury, the defendant would not be liable as a general proposition. If the plaintiff thought that this charge was misleading in not hypothesizing that the defendant would be liable for the act of said Dennis, if it was done in accordance with a custom or usage which was known and acquiesced in by the defendant, an explanatory charge could have been requested.

. It must be observed, however, that there is no count in the complaint, relying upon the negligence of the defendant in permitting or acquiescing in such a custom or usage; but, on the contrary, the negligence relied upon is distinctly either the defect in the roof as a part of the plant, or the failure to provide a safe place in which to work, and it is shown by the evidence that the injury could not have occurred from either of said causes, but for the intervening negligence of said fellow servant in pouring the molten metal on the wet sand of the “gangway” in the place of in the “pig bed,” the place prepared for it. Mr. Dresser, in his work on Employers’ Liability, says: “A proximate cause of any event must be understood to be that which in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred,” also “when, however, between the negligent act and the injury a new cause intervenes, one that is independent of the act, springing from a source of its own, the causal connection is broken by it, and the negligent act is too remote. If this intervening agency is' a new force, independent of what went before, and sufficient in itself to bring about the injury, then it-is not a natural or probable sequence of the negligent act; and, although it may operate upon a state of affairs created by the negligent act, yet, since it neither sprang from that condition, nor was brought into operation by that condition in a way naturally and reasonably to be anticipated, it must be regarded in itself as the proximate cause of the injury, etc.” 1 Dresser’s Employers’ Liability, p. 79, § 14, and pages 81, 82, § 14.

It is difficult to accurately differentiate the cases on this subject, but it seems that some other cause may cooperate with the negligence of the master in causing* the injury, yet the injury must result from the negligence of the master or some servant included in the liability act, continuing in an unbroken sequence, so as to fix liability on the master. This is happily expressed by Chief Justice McClellan thus: “The fall produced the injuries. The injuries produced blood poisoning, and the blood poisoning caused death. There was no break in the chain of causation from the alleged negligent act to the death of the intestate. The blood poisoning was not an independent cause. It was not a superseding cause. It was itself a result, or, perhaps more accurately, a mere development of the injury.—Armstrong, Adm'r, v. Montgomery Street Railway, 123 Ala. 249, 26 South. 353. These remarks are appropriate to the parts of the oral charge excepted to, as to which it may be remarked also-that the entire oral charge is not set out, so that we cannot judge of it as a whole.

However, even if it could be said that the knowledge of the custom of throwing out the molten metal on the gangway could constitute the act one such as to form an unbroken sequence from the defective roof, which we do-not hold, yet, in order, to make out his case, the burden was on the plaintiff to prove this material allegation of tbe complaint, which was necessary to his recovery.

Charge D was properly refused. There is no evidence tending to show'any rule against pouring the metal into the “pig bed,” but, on the contrary, that was the place according to tlie evidence where the rule required it to he poured. <

There being uo reversible error apparent on the record, the judgment of the court is affirmed.

Affirmed.

Anderson, McClellan, and Mayfield, JJ., concur.