Alabama V.R. Co. v. Fountain

^* Corpus Juris-Cyc. References: Master and Servant, 39CJ, p. 1153, n. 95; Trial, 38Cyc, p. 1779, n. 76; p. 1785, n. 90. This is an appeal from a judgment against appellant for the death of Flex Fountain, who was employed by appellant, both appellant and deceased being, at the time of the death, engaged in interstate commerce. Deceased was killed instantly at Jackson, Miss., in October, 1925, while engaged in the work of elevating the railroad track of appellant in said city.

Appellant used a "derrick car" for the purpose of raising the track, which was operated by steam power, and the track was raised by means of what is called a "boom" which was raised by a three-fourths inch wire cable rope, and this cable wound round a drum. The injury resulted by reason of the breaking of this wire cable which was holding the track at the desired elevation while the deceased was putting shims or props under the track to support it or raise it to the position to which it had been elevated by the derrick car.

This derrick car had been purchased from a shipbuilding concern after the late war, and had been in use, at the time of the injury, about six years, having been used by the shipbuilding company about two years, and by the railroad company, at intervals, for about four years. At the time the wire cable broke, the track had been raised and was being held in position by such cable, and no power, at the instant, being applied, the cable supported the weight of the boom and boom, which, according to the testimony, weighed about twelve thousand pounds. The cable was manufactured by a reputable manufacturing concern, and was supposed to last for a period of from twelve to fifteen years, and was supposed to have a lifting capacity of twenty tons. The precise character of the break is not fully disclosed in the evidence, but it seems to have been broken smoothly or completely at the point where it parted.

The crew who were firing the engine and operating it testified that the derrick car was brought over about two days prior to the time of the death of the deceased, and that they were looking at the cable when it was being operated, and observed no broken strands of wire, and the proof for the defendant showed that it had been inspected and appeared to be in good condition a day or two before the injury occurred, and the proof for the plaintiff tended to show that the cable being used had become brittle after long use, and that it was necessary to inspect such cable by taking it and bending it, and then releasing, to see whether it retained its tension or flexibility. If it had become brittle, when bent, it would not reflex readily to its original position, and was liable to break; but, if it retained its tension or flexibility so that it would react when released and recover its original position, it was in good condition.

The witnesses who testified for the plaintiff as to such fact had had considerable experience in using cables in lifting logs and similar movements for a lumber company which had used like cables to lift logs onto cars, and in drawing logs by means of skidders from the forest to the tracks.

The only method of inspection shown by appellant was observation of the wire in its operation by the crew, and having an inspector to inspect it, but such inspector who only had inspected it shortly before the time of the injury, did not personally testify as to the method used by him in inspecting the cable.

It is insisted by the appellant, first, that the evidence is insufficient to sustain the verdict, and that the appellant only owed the duty of using ordinary and reasonable care in inspection of the cable.

The court instructed the jury for the defendant that the mere breaking of a cable was not evidence that defendant was guilty of negligence, and no contention is made by appellee that the mere breaking of the cable is sufficient to establish negligence, and no claim of the doctrine of res ipsa loquitur is contended for by plaintiff.

We think the plaintiff's witnesses who testified were competent to testify as to the proper manner of inspecting cables to discover brittleness or other defects therein. Although they had not worked for a railroad company in proper railroad operations, still they had used drums, cables and booms in similar, though not exactly, work. They had had experience in the matter, and one of them testified that it was customary and usual among all operators, so far as he had observed during his experience, to test the safety of the cable in the manner above indicated.

We think it was a question for the jury as to whether reasonable care had been used in reference to such inspection, and that the evidence warrants the jury in finding that appellant did not use proper methods of inspections as to the safety of the cable.

It is also complained that the court erred in giving instruction No. 1 for the plaintiff, which reads as follows:

"The court instructs the jury for the plaintiff, Mrs. Vallerie Fountain, executrix of the estate of Flex Fountain, deceased, that it was the duty of the defendant railroad company to furnish Flex Fountain with a reasonably safe place to work; and if the jury believe from the evidence that the cable in question that broke was not sufficiently strong, or was defective when it broke, and that defendant knew or should have known from reasonable diligence of the defect, if defect there was, and that said cable was not reasonably safe for the kind of work it was doing when it broke, and that the breaking of said cable was the proximate cause of the death of Flex Fountain, and the jury further believes from the evidence that the railroad company was guilty of negligence in furnishing said cable if defective it was, and that said negligence, if negligence there was, was the proximate cause of the death of Flex Fountain, then they shall find a verdict for the plaintiff."

The defendant obtained a number of instructions upon the same subject explaining fully its duty and obligation in respect to the matter.

The second instruction for the defendant informed the jury that — The deceased by "entering and continuing in the service of the defendant, assumed all risk of danger normally and necessarily incident to the occupation in which he voluntarily engaged. And he assumed the risks of this sort, whether he was actually aware of them or not. The defendant did not insure his safety against the breaking of machinery used in its service. Unless the jury believe from the preponderance of the evidence that the cable broke as a result of negligence on the part of the defendant, then it is the sworn duty of the jury to find for the defendant, regardless of every other fact in this case."

It also procured instructions that a reasonable inspection did not mean such an inspection as would necessarily or infallibly disclose a defect if one existed, but only such inspection as a reasonably prudent man, in the exercise of ordinary care, would make, and that, if the plaintiff's decedent was killed as the result of a mere accident, the jury should find for the defendant. It also procured instructions that the defendant was not required to furnish its employees with a cable that would not break; that all that was required of defendant in furnishing a cable was the exercise of a reasonable degree of diligence, to furnish a reasonably safe cable for the purpose for which it was intended to be used, and to exercise a reasonable degree of diligence to keep it in a reasonably safe condition, and that, therefore, unless the jury should believe from a preponderance of the evidence that the defendant did not exercise a reasonable degree of care to furnish a reasonably safe cable, and keep it in a reasonably safe condition for the purpose for which it was intended to be used, the jury should find for the defendant; that, even if the jury believe from the evidence that the deceased was killed by the breaking of the cable thus permitting the boom to fall upon him, this does not, of itself, impose liability upon the defendant; and that the jury should find a verdict for the defendant, and unless the plaintiff had proven, by a preponderance of the evidence, that the defendant did not exercise ordinary care to furnish a reasonably safe place, and exercise ordinary diligence to keep it in a reasonably safe condition.

The jury was further instructed for defendant that, even if they believed from the evidence that the cable broke and caused the boom to fall and strike the decedent and kill him, yet, if they further believed from the evidence that the plaintiff, by the exercise of ordinary care, could not have discovered that the cable was defective, the risk of being injured as a result of the breaking of the cable was assumed by the plaintiff, and that in that respect the jury should find for the defendant. Further instructions for defendant were that defendant was not the insurer of decedent's safety at the time and place he was killed; that defendant did not owe him the duty to furnish him with an absolutely safe place in which to work, or safe tools, appliances, or instrumentalities with which to work, and that if the jury believed from the evidence that the cable was in a reasonably safe condition for the purpose for which it was being used, the jury must find for defendant, even though they might believe that decedent was killed, and that he could not have been killed if said cable, at the time he was killed, had been in absolutely safe condition; that defendant was under no duty to decedent to make an inspection of the cable, such as would absolutely and with certainty discover any defect in said cable, if the jury believed there was such defect; that defendant was not liable for latent defects in any of its tools or instrumentalities which could not be disclosed by a reasonable inspection by a reasonably competent inspector; that the only duty resting on defendant in respect to inspecting said cable was that it should make such inspection with a competent inspector with reasonable frequency, and that it should, in making such inspection, exercise reasonable and ordinary care, that is to say, it should, both as to frequency and character of inspection, make such inspection as a reasonably prudent person would make under similar circumstances for the purpose of discovering defects in said cable, if any existed; that, if the jury believed from the evidence that the defendant made such inspection, and did not discover the cable was defective, they must return a verdict for defendant, even though the jury may believe that the cable was in fact defective, and that such defects would have been discovered by a more careful or more detailed inspection, and even though the jury may believe from the evidence that the decedent was injured and killed as a result of the cable being defective.

It is familiar learning that all of the instructions are to be construed together, and, if, when so construed, they fairly state the law, the judgment will not be reversed, even though there may be slight inaccuracies in particular instructions.

Viewing the instructions as a whole, we think the law was fairly announced, and the judgment will be affirmed.

Affirmed.