Tennessee Coal, Iron & R. R. v. Moody , 192 Ala. 364 ( 1915 )

SOMERVILLE, J.

The reported cases present only a few instances in which a servant has sought to recover from a master for injuries which have resulted primarily from the physical unfitness of the servant for the work which he had undertaken to do. As noted by Mr. Labatt: “The reason why recovery on this ground is so rarely sought is doubtless that, in the nature of the case, the Unfit servant is almost always aware of his unfitness. The effect of his knowledge is to bring the situation within the scope of the principle that, if a person of apparently full age and complete understanding undertakes certain duties, he is presumed to appreciate and accept the risk incident to those duties. Or, from another standpoint, he may be regarded as being guilty of contributory negligence in the undertaking of work for which he knows himself to be unfitted, especially where his culpability takes the form of an omission to inform the master of his unfitness.” — 1 Labatt on M. & S. § 180.

The author cites the case of Crowley v. Appleton, 148 Mass. 98, 18 N. E. 675, where, as here, the plaintiff was an epileptic and subject to fits, and sued for injuries received while serving in a place of peculiar danger. The trial judge instructed the jury that the plaintiff must show that he ivas subject to such fits; that he himself did not knoAv it., that the defendant did know it, and that the defendant knew, or had cause to know, the plaintiff did not know anything about it, and refused an instruction making the defendant responsible if the plaintiff was ignorant of and the de-. fendant .acquainted Avith the malady, Avithout regard to the defendant’s knoAvledge of the plaintiff’s ignorance. On appeal it Avas held that the trial court did not err.

In the instant case, it might perhaps be justly affirmed, on the plaintiff’s own shoAving that, with or without the order complained of, he would equally have undertaken his regular work on this occasion, Avith the same result, and hence that the order was not the proximate cause of his injury. — M. & O. R. R. Co. v. George, 94 Ala. 199, 10 South. 145; B. F. & M. Co. v. Gross, 97 Ala. 220, 226, 12 South. 36. But, conceding that it was the defendant cannot- be held responsible for that result. So far as their own safety is concerned, persons not under contractual disability should be, and .are allowed to determine for themselves whether their physical infirmities, known to themselves, shall debar them from any particular employment. According- to .the nature and degree of their infirmities, they must be more or less exposed to dangers, naturally resulting from their attempt to serve, in almost any of the modern industries. It is no doubt a hard choice, but such persons must estimate for themselves the chances of injury, and it would be unjust as well as illogical to visit the consequences of their choice upon their employers. It may be a matter of delicacy as well as difficulty for the employer to undertake in each case to determine the nature and extent of the malady or infirmity of one who offers to work, or the likelihod of injury resulting therefrom; and we think the employer may, without liability, legal or moral, accept the judgment of a would-be servant who knows his own condition.

Nor would the imposition of liability upon the master in such cases be either politic or humane, even from the servant’s point of view, since it would inevitably result in depriving- of a livelihood many afflicted persons who have no choice but to labor, and who are impelled by expedience or necessity to choose the more lucrative, if more dangerous employment.

(1, 2) We approve the rule as affirmed by the Massachusetts court, and hold that the order in question was not negligent under the circumstances, and that plaintiff assumed the risk of injury when he undertook to do the work in which he was engaged.

It results that the special charges, and also the general affirmative charges, as requested by defendant, should have been given to the jury, and their refusal was error.

(3) If plaintiff accepted from defendant a sum of money in settlement of his claim for damages by reason of this injury, no matter how the amount was arrived at, he was not entitled to recover in this action. The only issue under the plea of accord and satisfaction being upon plaintiff’s acceptance of the money as a satisfaction, defendant’s requested charge, embodying the proposition stated, should have been given, and its refusal was error.

For the errors noted, the judgment will be reversed and the cause remanded.

Reversed and remanded.

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