Caldwell-Watson F. & M. Co. v. Watson

ANDERSON, J.

— This case was tried upon count 1 of the complaint, and which is a defect count, under subdivision 1 of section 3910 of the Code of 1907, and is predicated upon a defective hydraulic press, which was a part of the defendant’s plant or machinery, etc. The plaintiff’s evidence tended to show that he was injured by a pin, plug, or screw, which flew out and hit him on the leg, fracturing the bone, and that there was an inherent defect in said press, in that it contained a certain hole which was not necessary, or, if necessary, that it could have been forced instead of straight, and would have been safer from producing accident than the one in question. There was also evidence that the pin or plug was not put in in a workmanlike manner. This furnished evidence from which the jury could find that there was a defect in the ways and works, etc., and for which the master was responsible, if it arose from negligence, either in furnishing a defective instrumentality or failing to remedy or repair same.

In 2 Labatt on Master & Servant, p. 1963, § 670, it is said: “Wherever an instrumentality is not in a proper condition for the purpose for which it was applied, there is a defect in its condition within the meaning of the act. If the whole arrangement of a machine is defective for the purpose for which it is applied, there is a defect so as to bring it within the act, although each part may be sufficient. It follows therefore, that whenever there is such an unsuitableness for the work intended to be done and actually done, the liability contemplated by the statute arises although the appliance is perfect of its kind and in good repair and suitable for other kinds of work. In such case the employer is in fault because he has furnished appliances for a use for which they are unsuitable, and in effect in so ordering and carrying on his work that, without fault on the part of an ordinary workman, the natural consequences will be that the appliance will be used for purposes for which it is unsuitable.”

In Dresser on Employers’ Liability, § 39, p. 206, it is said: “The question is whether the fact that the machine was unfit for the purpose for which it Avas applied constitutes a defect in its condition. The question really almost answers itself. If it was not in a proper condition for the purpose for which it was applied, there was a defect in its condition within the meaning of the act. The argument of the defendant comes to' this: That if the employer has a machine one part of which is weaker than it ought to be, there is a defect in its condition, but if the whole machine is too weak for the purpose for Avhich it is applied, there is no such defect. Could it be said, if a windlass only for raising a bucket is used to draw up a number of men, that there is no defect in the condition of the machinery? The condition of the machinery must be a condition that relates to the purpose for which it is applied.”

In line with the above is the language of McClellan, J., in K. C. M. & B. R. R. Co. v. Burton, 97 Ala. 240-246, 12 South. 88, 91: ‘There must be some inherent condition of a permanent nature of the ways, works, machinery, or plant Avhich unfits the thing for its uses: some weakness of construction with reference to the proposed uses (as Avhere the ordinary appliances for drawing buckets of water from a well are used to lower and hoist men) ; some inadaptation to its purposes (as where the sides of a coke lift are not sufficiently fenced to safely hoist its burden. — Heske v. Samnelson, 12 L. R. [Q. B.] 30) ; some break or misplacement of the parts, or the absence of some part; some innate abnormal quality of the thing which renders its use dangerous (as the viciousness of a horse constituting ‘plant’ in the business of a wharfinger. — Yarmouth v. France, 19 L. R. [Q. B.] 647) ; some obstacle in the way of use, or obstruction to the use, which is a part of the thing itself, or of the condition .of the thing itself, as holes in or ice upon a way, or the like — to constitute a defect in the ways, works, machinery, or plant under the statute.”

There can be no doubt of the soundness of the proposition that the burden of proof is upon the plaintiff:, not only to prove the existence of the alleged defect, and that the said defect was the proximate cause of the injury, but also that the defect arose from or had not been discovered or remedied owing to the negligence of the master or employer, or some person in his service. —L. & N. R. R. Co. v. Lowe, 158 Ala. 393, 48 South. 99. When, however, the defect in an appliance is shown to be structural, and as of such character as renders it unsafe, it may be inferred that the master was aware of the defect, especially when the machine or instrumentality Avas constructed by him.- — 26 Cyc. 1144; Jasper v. Barton, 1 Ala. App. 472, 56 South. 42.

The law does not require the master to use the best possible appliances; he may show that they Avere such as Avere adopted and used by many prudent persons engaged in the same business, yet this fact does not neciessaqily exempt the employer from liability. — Prattville Cotton Mills v. McKinney, 178 Ala. 554, 59 South. 598; Davis v. Kornman, 141 Ala. 479, 37 South. 789. The fact that others in the locality made and used presses like tlié one in question is a very pertinent fact on the inquiry of negligence vel non on the part of these defendants, hut is not conclusive that said machine Avas not defective. — Going v. Ala. Co., 141 Ala. 537, 37 South. 784. We do not understand this rule to be opposed by the cases of Georgia Pac. R. R. Co. v. Propst, 83 Ala. 526, 3 South. 764, and L. & N. R. R. Co. v. Allen, 78 Ala. 494, as those cases correctly lay doAvn the rule that the master need not adopt every neAV invention, and it is sufficient if he uses those in ordinary use by prudently conducted roads engaged in like business and surrounded by like circumstances. They do not hold that such a fact is conclusive evidence against all defects in the instruments, machines, or works so used, as others may be remiss in the selection and use of their machinery, instruments, etc.

We think the holding means, where evidence is shown that the Avays and Avorks of the defendant are unsafe, or insufficient, that proof that similar instruments are generally used by other prudent persons engaged in similar calling is evidence in rebuttal, and might influence the jury in holding that there was no negligence, but such proof would not, as matter of law, conclusively shoAv that there was no negligence in the selection or use of such machinery or instrumentality. There was no error in refusing charges 2, 4, 5, 6, 7, and 8, requested by the defendant.

There was no error in refusing charge 1, requested by the defendant. If not otherwise bad, it pretermits the fact that the press in question was constructed by the defendant, and such being the case, it was chargeable with notice of inherent defects, although latent and not discoverable upon an ordinary inspection.

Charge 9, requested by defendant, if not otherwise bad, was abstract, as the law- charged the defendant with notice of any defect arising ont of the manufacture of the press, as it was manufactured by it.

Charge 10 was argumentative, if not otherwise bad.

. Charge 3, requested by the defendant, if not otherwise bad, is misleading, as the jury may have been influenced thereby to find for the defendant, unless there was negligence in the manufacture of the press. The press may have been actually manufactured in a most skillful manner, and yet be an imperfect or unsafe machine for the purpose for which it was installed and used by the defendant. In other words, the type or some of its component parts may have been imperfect, and-yet the machine may have been constructed and put together in a most workmanlike and skillful manner.

The second part of the oral charge excepted to was a mere statement of one of the plaintiff’s contentions, and it instructed no finding upon said contention, and the defendant was not thereby injured, even if the claim was not supported by the proof, but which fact we need not determine.

It is no doubt a sound proposition of law that the master is only required to exercise reasonable care and skill in furnishing the servant a reasonably safe place or tools, and that it is not an imperative duty to- insure the place or tools, and so much of the oral charge as is involved in the third exception would have been better had it stated that it was the duty of the master to exercise reasonable care to furnish a reasonably safe place, instead of saying that it was his duty to< furnish a reasonably safe place, yet, Avhen this part of the charge is taken with the Avhole oral charge, as set out, we think that the duty of the master was properly set out, and that the jury could not have been misled by this part excepted to by the defendant.

The defect complained of was in the hydraulic press, and the court had previously emphasized the fact that defendant had to use only reasonable care as to- the construction of same, and that the only duty in this regard was to exercise reasonable care.

A sufficient predicate was laid for the opinion evidence of Ball and Frank. They had, perhaps, never constructed presses like the one in question, but they were both master mechanics of many years’ experience, and were familiar with hydraulic pressure and machinery, and with the general construction and repair of machinery, as well as with making and plugging holes.

There was no error in refusing the motion for a new trial.

The judgment of the city court is affirmed.

Affirmed.

Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.