Sloss-Sheffield Steel & Iron Co. v. Reid , 184 Ala. 647 ( 1914 )

SOMERVILLE, J.

— On a former appeal (Reid v. Sloss-Sheffield, etc., Co., 177 Ala. 262, 58 South. 301) it was held that defendant’s plea 25 was not subject to-the demurrer. The trial court seems to have overlooked this "ruling, and erroneously sustained the demurrer to this plea, Avliich is not sufficiently covered by any other plea to avoid the imputation of prejudice by reason of its improper elimination.

Plea 23, whether defective or not, ivas fully covered as to its defensive matter by plea numbered 18, and its elimination was not prejudicial to defendant.

Pleas 24, 26, and 28 are subject to the sixth ground of demurrer in that they predicate plaintiff’s negligence upon his failure to open the cylinder cocks, without averring that the resulting diminution of steam pressure would have so retarded the starting of the engine as to have avoided the injury to plaintiff’s hand. The averments of-these pleas do not bring them within the ruling in A. & B. A. L. Ry. v. Alexander, 161 Ala. 382, 49 South. 792, where it appeared that using the reverse lever would have diminished the amount of steam passing through the leaky throttle valve into the cylinders by one-half, so that the accumulation of sufficient steam to move the engine, while plaintiff was working under it, would have required twice as much time, and so probably have conserved his safety.

The case went to the jury upon pleas 18 and 20, among others, and the essential issue presented by these pleas was the necessity vel non of plaintiff’s placing his hand upon or dangerously near the side rod or disk of the engine while discharging the duties of his service.

The evidence showed that while cleaning the engine, wiping off its parts with his right hand, during a brief intermission in its actual operation, plaintiff inadvertently rested his left hand on the crank between the side rod and the disk, so that when the engine moved it was caught between those parts.

On the issue stated, it was unquestionably proper for defendant to show the absence of any necessity for the presence of plaintiff’s hand at a place of known danger; and, as tending to show such absence of necessity, it was clearly competent to show that the duty of wiping .off the engine could have been done at times when no steam was on, and that it ivas not necessary to do it during the short intervals between car trips. It was competent, also, to show that the nse of one hand was sufficient for that purpose, and that there was no necessity for nor propriety in the left hand of a right-handed cleaner being' placed upon any part of the crank or disk during such a service. Equally competent also was evidence that it was not customary to clean such engines while in operation. — Western Ry. v. Arnett, 137 Ala. 414, 426, 34 South. 997. These are matters of expert and not of common knoAvledge, and the witnesses interrogated were men of skill in that line and competent to give their opinion. — 11 Cyc. 232j. This is not taking from the jury the ultimate question of plaintiff’s negligence under all the circumstances of the case, but only furnishing them Avith a basis more or less complete for their final conclusion. We do not mean to approve the form and merit of all of the questions propounded by defendant along this line, but AAdiat we have said Avill be- a sufficient guide to the trial court upon another trial. We do not find any other material error in the rulings of the court on the evidence. The oral charge of the court, as excepted to, properly submitted to the jury the issue stated therein.

The evidence shoAvs Avithout dispute that the friction appliance and brake attached to the drum, and controlled by a lever AAdiich Avas convenient for instantaneous use by the plaintiff while operating the engine, Avould, if applied by him Avith the throttel valve closed, have absolutely prevented the spontaneous action of the engine; and that this could have been done instantly Avithout any appreciable loss of time.

Under all the evidence, Ave think it was clearly the duty of plaintiff to resort to this simple and convenient means of avoiding- danger, and that his failure to do so was negligence as matter of law, proximately contributing to his injury, and forbidding a recovery in this action. — A. & B. A. L. Ry. Co. v. Alexander, 161 Ala. 381, 19 South. 792. It is of course wholly immaterial that these appliances were not part of the engine operated by plaintiff, if they were at hand, and he was acquainted with their operation and effect.

It results that the trial court should have given the general affirmative charge for defendant, as requested. For the errors pointed out, the judgment will be reversed, and the cause remanded for another trial.

Reversed and remanded.

Anderson, C. J., and McClellan and deGraffenRIED, JJ., concur.