Camp v. Churchill , 186 Ala. 173 ( 1914 )

SOMERVILLE, J. —

On the undisputed evidence there can arise no rational inference that any negligence on the part of defendant’s superintendent, Ward, proximately contributed to the injury suffered by plaintiff’s intestate. There is nothing to indicate that Ward was negligent in giving the order to the engineer to lift the chains. The intestate’s special duty was to see that the chains swung clear of the wagon and beams, as the hoisting drew them up; he was on the wagon and had hold of the chains solely for that purpose; and they caught on the beams and threw them over only because he failed to hold them clear. If the hooks were caught so that he could not extricate them, he must have discovered this, as it was his business to do, and it was then his duty to see that they were released before they were raised; and, even though the hooks were then in fact caught in some way, Ward had a right to assume from the intestate’s attitude that the chains were clear and.were ready to be lifted. ■ But the evidence is without dispute that the hooks were not caught, and the rebuttal statement by Scarborough that they must have been caught because he could not see them is a mere guess on his part, and raises no conflict in the evidence on that issue. Scarborough says that the intestate was up on the dray holding the chains, and he tons supposed to hold them clear. And we are convinced that, as matter of law, Scarborough’s conclusion cannot be disputed. He says: “He did not hold them clear. That is how the accident happened.” It follows that, whether upon the plea of the general issue, or plea 3 of contributory negligence, defendant was entitled to the general affirmative charge, and the trial court erred in its refusal.

The special charges requested by defendant were properly refused as being abstract, misleading, or mere duplicates of special charges actually given.

We deem it unnecessary to discuss the question of whether the intestate’s death from acute pulmonary tuberculosis, nearly a year after he received this injury, can be proximately traced to the injury as its juridical cause.

It is unnecessary, also, to discuss whether there was error or ineradicable prejudice resulting from the statement of the plaintiff’s counsel in the presence of the jury that he desired to qualify them with respect to their relationship to any insurance company that might be indemnifying the defendant against the payment of damages in the pending cause.

If a plaintiff wishes in good faith to test the status of jurors in this regard, he may do so in a proper way under the direction of the trial judge, as pointed out in Citizens’ etc., Power Co. v. Lee, 182 Ala. 561, 62 South. 199, where the subject is discussed at some length.

Reversed and remanded.

Anderson, C. J., and Mayfield and Gardner, JJ., concur.