Scales v. Central Iron & Coal Co. , 173 Ala. 639 ( 1911 )

SIMPSON, J.

This is an action by the appellant eleventh section of said act provides that defendants the plaintiff while working as a carpenter on the furnace plant of defendant.

The first assignment of error insisted on, is to the action of the court in refusing to strike defendant’s pleas 3, 4, 5, and 6, the contention being that said pleas were not filed within the time prescribed by the special act under which said Tuscaloosa county law and equity court was established. — Acts ■ 1896-97, p. 262. The eleventh section of said act provides that defendants shall appear and demur or plead to the complaint within 30 days after service, and- authorizes judgment by default, on motion of plaintiff, at any time thereafter. The complaint was filed February 14, 1910, and served February 16, 1910, demurrer filed May 20, 1910, and said pleas were filed June 6 and 7, 1910. In the meantime no motion was made for a judgment by default. Said section of said act prescribes terms upon which pleas may be filed after judgment by default, but makes no special requirements as to terms on filing pleadings after the 30 days and before default claimed. There was no error in refusing to strike said pleas.

There was no error in sustaining the objection to the questions as to the cause of the reduction of plaintiff’s wages, as the questions called for the opinion of the witness, and should have asked for facts, leaving it to the jury to determine why the wages were reduced.

The plaintiff, as a carpenter, was working under the orders of Mack Powell, to whose orders he was bound to conform; and did conform. The dust box is cylindrical in shape, from 10 to 18 feet in diameter, and 20 feet or more in length, large enough for men tO' walk inside. The dust was transmitted from the furnace above, down into said dust box, through large pipelike passageways called “down comers,” which are large enough for a man to pass through. For the purpose of relining said dust box, the carpenters had erected a scaffold therein, upon which scaffold were placed sections of ovalshaped lagging which supported the brick that were used in lining said dust box,'until sufficiently-dried for said lagging to be removed. No light came into said dust box except such as shone through two explosion doors in the top thereof, one being at each end of said dust box, and each large enough for a man to crawl through. There were wires for transmitting electricity, hanging through the explosion doors, upon which were placed electric lights, but there were no bulbs or electric lamps in the sockets, though there had been the day before.

While the plaintiff was in the performance of his general duties, he and his squad were ordered by said Powell to go into said dust box and tear out the scaffolding or lagging, there then being one or more electric lights furnishing sufficient light to work in said dust box. On the next morning, when plaintiff went into said dust box to continue said work, he discovered that there was no electric lamp or bulb therein, and he came out and reported the fact to said Powell, stating that he did not like to go in and work in the dark while the brick masons were working above, in the “down cornier,” for fear that something might fall on him; and said Powell ordered him to go back to work, stating that they could not.wait for the electrician to put lights in. Plaintiff, in obedience to orders, then went back, and when he had passed one piece of lumber through the bootleg below, a piece of lumber, with an eight or ten penny nail protruding from the end thereof, fell from some point above and struck plaintiff on the head, causing the injury complained of. Plaintiff could not see said plank, nor how to protect himself therefrom, nor where it came from.

It will be observed that tbe only negligence complained of is the failure to renew the electric bulb. There is no evidence tending to show that if the bulb had been there, the plaintiff could have seen into the regions above him, so as to discover the falling plank in time to avoid it; no causal connection is shown between the absence of the light, and the falling of the plank, and there is no evidence tending to show ivhether the falling of the plank was the result of the negligence of any one; and there is no allegation or proof as to who was responsible for the falling of the plank. For aught that appears, it may have resulted from the negligence of the plaintiff and his co-workers, in constructing the scaffold. In fact, the explosion doors being closed, there was no place for the plank to fall from, except the platform that had been erected by plaintiff and his co-employes.

There was no error in the action of the court in sustaining the m'otion to exclude the evidence of the plaintiff, and giving the general charge in favor of the defendant. This being the case, it is unnecessary to notice exceptions to rulings on the pleadings.

The judgment of the court is affirmed.

Affirmed.

McClellan, Mayfield, and Somerville, JJ., concur.