Sloss-Sheffield Steel & Iron Co. v. Terry , 191 Ala. 476 ( 1914 )

MoCLELLAN, J.

(1, 2) The motion to dismiss the appeal is without merit. It appears from the certificate of the clerk that the appeal was taken July 11, 1913, in vacation, between terms of this court. In such case the appeal was returnable at the next term, viz., that beginning in November, 1913. — Martin Machine Works v. Miller 132 Ala. 629, 32 South. 305. The transcript on appeal was filed February 2, 1914, during the term to which the appeal was returnable. The transcript was filed on the first day of the call of the division to which this appeal belongs. — Rule 41, Supreme Court Practice (175 Ala. xx, 56 South, vi); Street v. Street, 113 Ala. 333, 21 South. 138; Martin, etc., v. Miller, supra; South. Ry. Co. v. Abraham, 161 Ala. 317, 49 South. 801. The appeal and supersedeas bond was approved by the clerk on the date the appeal was taken, viz., July 11, 1913. The mere omission to date the bond is palpably without merit. — Code, § 2886.

The plaintiff (appellee) was, when injured, in the. employment and service of the defendant (appellant). The work in progress was the “surface mining” of ore by means of a shovel. The shovel was operated by steam power afforded by an engine that, with the shovel’s apparatus, was resting and moved upon a temporary woodway laid on the surface of the earth, so as to- allow the “dipper” to scoop the ore out of the face of the bank ahead of the shovel. Plaintiff was the crane-man, whose duty it Avas to operate the dipper, and to scoop out the dirt and ore in the bank, and to empty the contents of the dipper, after each scoop, into cars provided for the purpose of moving the material.

(3) The seventh count was drawn under the first subdivision of the Employer’s Liability Statutes.— Code, § 3910. In the usual terms, following the statute, it ascribes the injury to a defect in the condition of the ways, works, etc., of the defendant, and then avers: “Which defect consisted in this: A wall of ore and clay near which plaintiff was engaged in the performance of his duty at the time of his said injuries was insecure and unsafe, so that a large embankment therefrom fell upon plaintiff, to' his damage.”

According to the apt authority of A. G. S. R. R. Co. v. Davis, 119 Ala. 572-582, 24 South. 862; Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 213, 37 South. 445; Huyck v. McNerney, 163 Ala. 244, 254, 50 South. 926; St. Louis R. R. Co., v. Sutton, 169 Ala. 389, 400, 55 South. 589, Ann. Cas. 1912B, 366; Pell City Co. v. Cosper, 172 Ala. 532, 536, 55 South. 214; Little Cahaba Co. v. Gilbert, 178 Ala. 515, 520-523, 59 South. 445; St. Louis R. R. Co. v. Phillips, 165 Ala. 504, 510, 511, 51 South. 638; Stephens v. Pierson, 8 Ala. App. 626, 62 South. 969 — count 7 was sufficient in all respects, and was hence not demurrable. Neither the decision nor the opinion in T. C. I. & R. R. Co. v. Smith, 171 Ala. 251, 55 South. 170, qualify the ruling and doctrine of the long line of decisions noted above. Like considerations confirm the correctness of the trial court’s action in overruling the demurrer to the fourteenth count.

(4) Counts 10 and 13 were also sufficient. — Reiter-Connolly Co. v. Hamlin, 144 Ala. 192, 213, 40 South. 280; L. & N. R. R. Co. v. Bargainier 168 Ala. 567, 578, 53 South. 138, treating count 14 there under review. The citation, in brief of Bargamier’s Case, as authority for a contrary conclusion, results from mistaking the dissenting opinion for that of the majority.

(5) Neither the eleventh nor the twelfth counts were subject to the demurrer. — Woodward Iron Co. v. Marbut, 183 Ala. 310, 62 South. 804.

The report of the appeal will contain a condensed statement of all the counts mentioned above, except that numbered 7, which has been quoted before.

(6) There is no assignment of error urged here as for the refusal by the court of general affirmative instructions with respect to particular counts. But we may here remark that there was no evidence tending to show a defect in the condition of the ways, works, etc., as, for instance, declared on in count 7. — Langhorne v. Simington, 188 Ala. 337, 66 South. 85. Where the condition, from which the injury to the servant is declared to have resulted, was the immediate product of the progress of the work in which the servant was properly engaged, that condition could not have been a defect, within the first subdivision of the statute (section 3910).

The general affirmative charge on the whole case was refused to defendant. The insistence for error in this regard may be disposed of by the citation of the decision made in Langhorne v. Simington, supra, where, under similar circumstances, invoking the application of like principles, it was ruled that the question whether there was negligence of one intrusted with superintendence was correctly submitted to the jury.

(7) Manifestly there was no prejudicial error in the substance of the court’s instructions, in this case, as set out in the excerpts purported to be made in assignments of error 8, 9, and 10.

There was evidence to the effect that plaintiff, Avho was the craneman in the service before described, had in the usual way in the operation of a steam shovel removed the earth carrying the ore from the face of the bank to an height of about 20 feet from the level of the base Avhereon rested the machine; that the “dipper” did not reach to the top of. the bank, so that! the gradual removal of the earth, by the scooping out process, gave a concave shape to the face of the bank, leaving about four feet of soft, overhanging earth that was liable at any time to fall and did fall to the level of the base of the machine; that plaintiff was fully aware of the instability of the earth forming the overhang and of its practically constant falling, in varying quantities, to the base level of the machine; that his place for operating the shovel was elevated and nearer the face of the bank than that of any other employee serving in that work; that Daniels, an employee of superior-authority to plaintiff, ordered or directed plaintiff to move up, Avhich necessitated his (plaintiff’s) going to the base level and putting timbers under the wheels of the machine; that, while obeying this order or direction, earth from the overhang fell npon him, causing his injury; that Daniels’ duty was to watch the wall and to take care of the wall; and that Danieis knew or should have discovered, by the exercise of .reasonable diligence, that earth from the, in degree, unsupported top of the bank was liable to fall at any moment, and that it had been falling to the base level, to which place his order sent plaintiff to lay the timbers on which to “move up” the machine nearer the bank.

It could not be affirmed, as a matter of law, that, under the circumstances disclosed by the evidence, Daniels was not negligent. If he knew of the danger from the falling earth to one engaged as he ordered plaintiff to serve, or if his duty required him to observe the condition of the bank’s top — both jury questions under the evidence — and in breach of that duty he ordered plaintiff from a place of safety on the machine to a. place of danger on the base level, it is clear there were bases laid for a finding of liability, unless plaintiff was himself contributorily negligent. If the plaintiff’s injury had proximately resulted from the fall of the earth upon him while he was on the crane and engaged in the operation of taking the earth from the face of the bank, a very different question would be presented— a question that would be largely affected by the plaintiff’s knowledge of the liability of the bank’s overhang to fall at any moment. But the plaintiff’s stated knowledge of the unstable condition of the earth at the top of the bank could not be accorded, as a matter of law,, an effect to impute to plaintiff a disregard of the dictates of ordinary prudence in going to the place and serving where obedience to Daniels’ order carried him. It was for the jury to determine whether plaintiff was contributorily negligent in the light of his knowledge of the unstable condition of the overhanging earth.

The application of the familiar rule of Cobb v. Malone, 92 Ala. 630, 9 South. 738, forbids the pronouncement of error in the trial court’s refusal to set aside the verdict. There being no merit in the errors assigned and urged here, the judgment must be affirmed.

Affirmed.

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