Sloss-Sheffield Steel & Iron Co. v. Stewart , 172 Ala. 516 ( 1911 )

ANDERSON, J.

Count 2 was not subject to the grounds of demurrer interposed thereto. It is true that it does not aver that the defendant negligently failed to exercise reasonable care, etc., in furnishing the plaintiff with a reasonably safe place, yet it avers that the plaintiff’s injuries proximately resulted from, the “negligence of the defendant, in this: That it failed to exercise due care in and about making said roof reasonably safe and secure from falling, as it was its duty to do.” It was the duty of the defendant to exercise reasonable skill and care to furnish a reasonably safe place, etc., and the complaint avers a breach of this duty, in that the defendant failed to use “due care;” that is, the care owing the plaintiff, to wit, the exercise-of reasonable skill and care, and was the equivalent of averring a negligent failure. If the defendant failed to exercise due care — -.that is, the care owing the plaintiff, to wit, the exercise of reasonable skill and care — this would be a negligent failure. This complaint is unlike the counts condemned in the cases of Birmingham R. R. v. Parker, 156 Ala. 251, 47 South. 138, and Merriweather v. Sayre, 161 Ala. 441, 49 South. 916. Whether or not the criticism of count 13, in the Merriweather Case, was apt, we cannot tell, as the demurrers are not set out in the report of the case; but this case can be no authority against the present holding as the counts are not at all the same. Indeed, count 13 in said case is sui generis, as a careful reading of same will disclose. It charges the servant, and not the master, with the nondelegable duty of furnishing the plaintiff a safe place within which to work.

There was no error in not excluding all the testimony of the witness Stenson as to what the plaintiff was earning when injured. It is true he stated what the contractor said, and which was bad; but, independent of what the contractor told him, he stated that he turned in the plaintiff’s time as regular as the contractor did, and that he turned it in at $2 per day. Therefore, independent of what the contractor told the witness, the testimony tended to show that plaintiff was earning $2 per day, and the motion to exclude did not eradicate the good from the bad, but went to all of the witness’ testimony on the subject, and the trial court cannot be put in error for overruling said motion to exclude.

The question to Dr. Downing, covered by the third assignment of error, was rather awkwardly framed; but its purport was to ascertain the physical condition of the plaintiff at the present time, and the answer of the witness fully disclosed that the plaintiff had not entirely recovered from the injuries sustained, also that his present condition resulted from the stone falling on him.

The appellant can take nothing from the overruling of the objection to the hypothetical question to Dr. Hanby; for, if there was error in the question, the answer of the witness rendered it harmless, as the answer did not show a permanent injury, but tended to show that it would continue about 18 months, or possibly a little over.

• The plaintiff had shown that a request had been made upon Holsenback for timbers for the mine in question, and that said timbers had been promised, but had not been supplied. Holsenback then testified, upon direct examination, that no timbers were ever asked of him that he did not furnish. The plaintiff, therefore, had the right, upon cross-examination, to test the recollection and veracity of the witness, and the questions objected to were proper for this purpose, and the trial court did not err in overruling defendant’s objections to same. We do not understand that these questions were intended to show other defects, but to merely weaken the testimony of the witness on the direct examination.

The first part of the oral charge excepted to was in the abstract a correct statement of the duty of the defendant. It does not state that the defendant would be liable to the plaintiff under the conditions therein hypothesized, and was not, therefore, bad for omitting that the negligence must have been the proximate cause of the injury. This charge is unlike the one held bad in the case of Birmingham R. R. v. Moore, 163 Ala. 44, 50 South. 115, as that charge stated that plaintiff would be entitled to recover upon the statement therein made, while the charge in question does not attempt to authorize the plaintiff to recover.

Nor was there any error in the explanatory part of •the oral charge. We do not think that the use of the word “result,” instead of “cause” made any material difference either in the sense or legal effect of the charge. If the injury must be the proximate result of the negligence, then, of course, the negligence must have proximately caused the injury.

There was no reversible error in the second exception to the oral charge. It was, in the abstract, a correct statement of the defendant’s duty as to the props and roofs, but did not authorize a recovery or any liability on tbe defendant for any part of the mine not covered in the plaintiff’s proof. It merely states conditions under which the defendant would be guilty of negligence, but does not attempt to instruct as to what result or effect the negligence would have on the instant case. •

It may bé that, when a party claims damages for the loss of earning capacity, he must furnish some data as to his earning capacity before and after the injury, and not leave it a pure matter of speculation for the jury. —Manistee Mill Co. v. Hobdy, 165 Ala. 417, 51 South. 871; Birmingham R. R. v. Harden, 156 Ala. 250, 47 South. 827; Seaboard Co. v. Woodson, 98 Ala. 382, 11 South. 733; Helton v. Ala. Midland R. R., 97 Ala. 275, 12 South. 276. Failing to do this, he is entitled to no more than nominal damages.

The third exception to the oral charge, as to the plaintiff’s right to recover for any decrease in his earning capacity, if they believe from the evidence there was such decrease, was a correct statement, and was with the hypothesis; and if the evidence did not exist, it was merely abstract and cannot operate to reverse the case.

Charge 17, refused the defendant, pretermitted the plaintiff’s right to recover nominal damages for the decrease in his earning capacity, and its refusal was therefore justifiable. — Harden’s Case, supra, and Woodson’s Case, supra. Whether the plaintiff did or did not furnish sufficient data as to his earning capacity, before and after the injury, as to authorize the assessment of any specific sum as damages, we need not determine, as there was evidence from which the jury could infer that he would never be able to perform heavy manual labor, and of his previous earning capacity, this entitled him, under any aspect of the case, to nominal damages. It might be that if the plaintiff was not entitled, under the evidence, to anything for decrease 'n his earning capacity, except nominal damages, that the giving of such a charge as 17 would not reverse the case; but the fact that it pretermitted nominal damages rendered it technically had, and the trial court will not be reversed for refusing same.

The judgment of the city court is affirmed.

Affirmed.

Dowdell, O. J., and Sayre and Somerville, /] J., concur.