
    Southern Car & Foundry Co. v. Bartlett.
    
      Action■ for Damages for Personal Injuries.
    
    1. Employer and employe; pleading; Code; .Sec. 171/9, Subdiv. 3. — -A count alleged .that plaintiff, an employe of defendant, was working; for defendant as a mill-wright. engaged in repairing machinery, and was so working under one B., as plaintiff’s foreman, to whose orders he was bound to and did conform in said work; that his injury’ resulted from his having conformed to said'orders; that said foreman'negligently ordered and directed plain* iff to take out the bolts and fastenings ' which held a shafting and pulley in place, without in any way tieing said shafting to prevent it from falling;, that when plaintiff put his hand through the opening in siaid pulley to tie a rope to it,to let it down, it fell and injured .plaintiff’s hand; that said injury was caused by the negligence of said foreman, who was in the service of defendant and in the exercise of superintendence entrusted to him by defendant. Held: That said count was not demurrable, as failing to show negligence on the part of said foreman, or as showing contributory negligence on the part of plaintiff, and that said count stated a cause of action under subdivision 3 of section 1749 of the -Code.
    2. Same; same; same. — A count in a complaint alleged that plaintiff, an employe of defendant under one B. as foreman was engaged in taking down a broken piece of shafting to which was attached a large pulley; that said B. had superintendence of plaintiff and also of the work of taking down said shafting; that plaintiff was bound to conform to the orders of said B. and did so conform at the time of said injury; that said B., while in the exercise of said superintendence over plaintiff and the work, negligently ordered and directed plaintiff to take the bolts and fastenings out of said piece of broken shafting before tieing it in any manner to prevent it from falling, and negligently ordered and directed plain'iff to tie said piece of broken shafting after the bolts and fastenings were taken out; that plaintiff complied with said order, and while he was in the act of doing so said- broken piece of shafting fell and mashed off. his finger. 'Held: That said count stated a good cause of action under subdivision 3 of section 1749 of the Code,.and was not demurrable for showing contributory negligence ine the doing of an obviously dangerous thing. - ■<;.......' - • ,
    3. Same; same; same. — A-count .alleged an -injury- to plaintiff’s, hand: received -by.him while in- defeñdan’s-employment; caused by the falling of a piece of shafting -with a large pulley on it; that said shafting fell and sa-id injawy was inflicted by reason of the negligence of -defendant’s: employe; one B., who was in charge-of the work of taking down 'a-piece of broken shafting at defendant’s plant;-that said injury resulted to plaintiff while acting under 'the' orders of -defendant’s- said employe, who had charge of said wo-rk, and'while conforming thereto; that-plaintiff was -bound-to conform to the orders of defendant’s said employe, who was his superior and in charge of the-work of taking-down saic] shafting, etc. Held: That said count failed to-state a-cause o-f action under ■ section 1749 of the Code, in that -it failed to show that Br was entrusted with any superintendence or was negligent while in the exercise -of superintendence, and failed to show that B. gave any order, or what it was, or that it was negligent.-
    4. Same; Code, Seo. 171¡9¡ Subdiv. 2.- — A count -in a complaint alleged that plaintiff was working for' defendant under one B. as his foreman, in taking down a broken piece of shafting to which was attached a large pulley;-that the means which defendant provided for taking it down was a large rope which was to be thrown over a plate above said shafting and pulley, and made fast to said pulley, so that it could be lowered by . degrees and not allowed to fall; that.said foreman was in the employ of defendant and had the superintendence of taking said shafting and pulley do-wn entrusted to' him and whilst in the exercise of s-uch superintendence negligently failed 'to tie or have said rope tied t.o said pulley and shafting before the fas+enihgs 'which held Said pulley and shafting in place were taken loose; and negligently-ordered and directed plaintiff to take out the bolts and fastenings which held said pulley and shafting in place, before tieing said rope to said pulley; that the taking.out. of said bolts and fastenings before said rope was -tied to said pulley left it with nothing to hold it except the pressure of its.ends against the flanges to which it had been bolted, and. in a dangerous condition, being liable to fall on receiving the slightest jar, and when plaintiff attempted to tie said rope to said pulley it did fall and inju're plaintiff’s hand; that' the bolts which held said shafting and pulley in place were taken out before said rope was tied to said pulley, and by reason of this negligence plaintiff received his said injury. Held: That the count stated a good cause of action under- subdivision 2 of section 1749 of the Code, and was not demurrable for showing contributory negligence.
    5. .Employer and employe; evidence; damages.- — Where plaintiff has, testified that he was a blacksmith in defendant’s employment and was earning from $3 to $5 per day before he went to work . for defendant, and that the injury had decreased his earning , • capacity, by rendering it impossible to do his work as rapidly . > as before the injury, it is not error to allow him to testify . ; that he was discharged by defendant from his position as blacksmith — which he held after he received the injury — on the ground that he was too slow.
    6. Same; evidence; conclusion. — Where defendant pleads that plaintiff was guilty of contributory negligence in taking out certain bolts, when he knew or should have known that by so doing the shafting and pulley would fall, it was not error to allow plaintiff to state that so far as he could see it was not dangerous to take out the bolts that held the pulley to the shafting;
    7. General affirmative charge; when improper.- — The general affirmative charge is never proper where there is direct conflict in the evidence on material, issues in the case.
    Appeal from Circuit Court of Calhoun.
    Tried before Hon. Joitn Pelham.
    • The plaintiff, J. S. Bartlett, brought this action against the Southern Car & Foundry Company, and sought to recover damages for personal injuries received’by him while in defendant’s employment.
    The several counts of the complaint construed in the opinion alleged the date of the injury and its nature and character and that plaintiff was in defendant’s employment as a mill-wright. The negligence charged in the counts, respectively, is as follows:
    Count. 1. — Plainti ff was “so working under one Arthur Bradley, as plaintiff’s foreman, to whose orders he was bound to conform and did conform in the work in which they were engaged; that said injury resulted from his having so conformed to said orders; that they were engaged in taking down a. broken piece of shafting, to which was attached a large pulley. Said shafting and pulley were some 12 or 15 feet from the ground, and said foreman negligently ordered and directed plaintiff and others engaged in the work to take out the bolts and fastenings which held said shafting and pulley 'in place, without in any way tieing said shafting to prevent it from falling; that when plaintiff put his hand through the opening in said pulley to tie a rope to -it for the purpose of letting it down, it fell and caught plaintiff’s fore-finger of his left hand between the rim of the pulley and the end of the shafting, and pinched it off; that said injury was caused by the negligence-;of said foreman, who was- in the service of defendant, and in the exercise of superintendence entrusted to him by defendant.”
    •Count 2. — That on said date “plaintiff was working for defendant under one Arthur Bradley as his foreman, and at the time- of said injury was engaged with others working under said foreman, in taking down 'a piece of broken shafting to which was attached a, larg'e pulley; that said shafting and pulley were some 12 -or 15 feet from the ground, and the means which the defendant provided for taking it down was a large rope which was to be thrown over a plate above said shafting and pulley, and made fast to- said pulley, so that it could he lowered by degrees and not allowed to fall; that said foreman was in the employ of defendant and had the superintendence of taking said shafting -and pulley down entrusted to him, and whilst in the exercise of such superintendence negligently failed to tie or have said rope tied to said pulley and shafting before the fastenings which held the said pulley and shafting in-place were taken, loose; and negligently ordered and directed plaintiff and others engaged in said work to .take out the holts and fastenings which held said pulley and shafting in place, before, tieing said rope to said •nulley. And plaintiff avers -that the taking out of said bolts and fastenings before said rope was tied to said pulley left it with nothing to hold it except the pressure •of its ends- against the flanges to which it had been bolted, and in a dangerous condition, being liable .to' fall on receiving the slightest jar, and when plaintiff attempted to tie the said rope t© said pulley, it did fall and caaglit plaintiff’s finger, etc.; that the bolts which held said shafting and pulley in place were taken out. before said rope was tied to said pulley, and by reason of this negligence, plaintiff received his said injury.”
    ■ Count, 4. — “That at the time of said injury plaintiff, was working for defendant under one Arthur Bradley as his foreman, and was engaged with others in taking-down a broken piece of shafting to which was attached a large pulley; that said Bradley had superintendence of plaintiff and also of the work of taking down said piece of broken shafting; that plaintiff ivas bound to conform to the orders of said Bradley,, who was also in the employment of said defendant, and did so conform at the time of said injury; that said Bradley, while in the exercise of such superintendence over plaintiff and over the work in which he was'engaged, to-wit, in taking down said piece of broken shafting, negligently, ordered and directed plaintiff to take the bolts and fastenings out of said piece of broken shafting before tieing it in any manner to prevent it from falling, and negligently ordered and directed plaintiff to tie said piece of broken shafting after the bolts and fastenings were taken out; that plaintiff was bound to conform to the orders of said Bradley; that, plaintiff complied with said order and while he was in the act of doing so said piece of broken shafting fell and caught plaintiff’s finger, etc.; that plaintiff was injured through the said negligence of said foreman in giving said order.”
    ■ Count 5. — -“Plaintiff avers that his forefinger was mashed off by the falling of a piece of broken shafting with a large pulley on it; that said shafting- fell and said injury was inflicted by reason of the negligence of defendant’s employe, Arthur Bradley, who was in charge of the work of taking down a- piece of broken shafting at defendant’s plant; that said injury resulted to plaintiff while acting under- the orders of defendant’s -said employe, who had charge of said work, and while conforming thereto; that plaintiff was bound to conform •to the-orders of defendant’s said employe who was his superior and iu charge of the work of taking down said shafting.”
    The defendant demurred to count 1 upon, the following grounds: (1.) It does not sufficiently appear from said count that plaintiff’s injuries resulted from his having conformed to the orders of defendant or defendant’s foreman. (2.) It does not appear that it was necessary for plaintiff to have put. his hand through said opening in said pulley. (3.) It does not appear from said count, but' that plaintiff was guilty of negligence in sticking his hand and fingers through said opening in said pulley. (4.) It does not sufficiently appear from said count that defendant or its foreman was guilty of any negligence, such as would entitle plaintiff to recover. (5.) It was the duty of the plaintiff and others engaged in the -work to have tied said shafting to prevent it from falling, before taking out the bolts and fastenings, which held said shafting and pulley in place. (6.) For plaintiff to, put his band through the opening in said pulley, when it was in a falling condition, without the same being tied or secured in any way, was negligence, for which the plaintiff cannot recover. (7.) It was the duty of said plaintiff to have tied or fastened the said pulley before taking out the bolts securing the same, without any orders from said foreman to that effect. f S.) It does not appear from said count that said plaintiff was not aware of the fact that said pulley and shafting were not tied secure. (9.) It appears from said count that there, was a perfectly safe way to have done the work, i. e., by tieing the pulley and shafting before taking out the bolts fastening or holding the same, and that plaintiff chose, an obviously dangerous way by doing the contrary.”
    Substantially the same, grounds of demurrer were interposed to the second and fourth counts of the complaint as to the first.
    The grounds of demurrer to the fifth count were as follows: (1.) It does not appear from said count -what was the negligence of said defendant or its employe. (2.) It does not sufficiently appear that defendant was guilty of any negligence such as will entitle plaintiff to recover. (3. ) How or wherein the defendant was guilty of negligence is not sufficiently averred. (4.) It is not averred that said employe, under whom plaintiff was acting, was defendant’s foreman, to whose orders plaintiff was bound to conform and that he Avas injured from having so conformed. (5.) It does not appear but that the employe of defendant, Avho is alleged to be guilty of said negligence, was a mere co-laborer with plaintiff. (6.) It does not sufficiently appear Avhy .said shafting fell. (7.) It does not appear that plaintiff was injured while acting under the orders of defendant or its foreman, to whose orders he Avas bound to conform, and Avas injured from having so conformed. (8.) It does not state AArho was the employe of defendant to whose orders plaintiff Avas bound to conform, or that said employe’s name is unknown to plaintiff.
    These demurrers were overruled; and the trial was ■had on issue joined on pleas of not guilty and contributory negligence.
    The opinion sufficiently shows the rulings on evidence and charges.
    From a judgment for plaintiff defendant appeals.
    J. J. Witxett, for appellant.
    Matti-ieavs & Whiteside, contra.
    
   HARALSON, J.

The complaint consisting of four counts, 1, 2, 4 and 5, is draAvn under subdivisions 2 and 3 of-the Employer’s Liability Act, Code section 1749. The first count stating that plaintiff Avas Avorking for defendant as a millwright engaged in repairing machinery- at the defendant’s plant in Anniston, Alabama, averred that Avhile “so working under one Arthur Bradley, as plaintiff’s foreman, to whose orders he Avas bound to conform and did conform in the work in which they Avere engaged, that said injury resulted from- his having so conformed to said orders.” After specifying the injury the plaintiff received, the count concludes: “That said injury was caused by the negligence of said foreman, aa-1io was in the service of defendant, and in the exercise of superintendence intrusted to him by -the defendant.” These averments are sufficient to bring the count well under the third subdivision of said "act, and the demurrer to it was properly overruled.” — K. C., M. & B. R. Co. v. Burton, 97 Ala. 240; Dantzler v. DeBardeleben C. & I. Co., 101 Ala. 309, 314; Bear Creek M. Co. v. Parker, 134 Ala. 293.

The fourth count is also sufficient in its averments to meet the requirements of said subdivision 3 of said act, and'was properly sustained as against the demurrers filed to it.

The fifth count does not state a cause of action within the statute. If the count was intended to make a case under subdivision 2 of the Employer’s Liability Act, it is had for the reason that, it does not aver that Bradley had any superintendence intrusted to him, or was negligent while in the exercise of superintendence. Considered with reference to subdivision 3, the count is also bad, because it does not aver that Bradley gave any order or what order he gave, or that he Avas negligent in giving the order, if he gave any.”

The second count appears to have been filed under subdivision 2 of said act. It alleges very fully that the injury to the plaintiff Avas caused by reason of the negligence of Arthur Bradley in the service or employment of the defendant, AAdxo had superintendence intrusted to him, Avhilst in the exercise of such superintendence. The demurrer to it Avas also properly overruled.

Each of the counts 1, 2, and 4, Avere as full in1 the aArermonts of the: negligence of the defendant’s employe, Arthur Bradley, as is required. They each set forth a substantial and legal cause of action. We have frequently held that very general aArerments of negligence falling but little short of mere conclusions, meet, the requirements under our svstem of pleading. — Mary L. C. & R. Co. v. Chambliss, 97 Ala. 171; A. G. S. R. Co. v. Davis, 119 Ala. 572; Armstrong v. Montgomery S. R. Co., 123 Ala. 233; C. of G. R. Co. v. Foshee, 125 Ala. 200; B. s. R. Co. v. Cuzzart, 133 Ala. 262; 31 So. Rep. 979; B. C. M. Co. v. Parker, supra; M. & O. R. Co. v. George, 94 Ala. 214.

It is assigned as error, that the court permitted, the plaintiff, against the objection of defendant to testify, that he; was discharged by defendant from his position as blacksmith, — which position he held after his finger was cut off, — on the ground that he was too slow.

The plaintiff had testified, that before he went to work for the company, his business was that of a blacksmith; that the loss of a part of his finger decreased his earning capacity in that profession; that he had not been able to make as much per day since he received, his injury; that he easily earned from $3 to $5 per day before he: went to work for the company; that the part of the finger mashed off, was the part of it- that-worked in the handle of the tongs and such like tools, and the loss of it made it difficult to handle such tools; that it made him slow and clumsy with his work, as he had often to stoop over and pick up a piece of iron with both hands, on account of the loss of the finger, and that his earning capacity had thereby been decreased by about one-fourtli. He also testified, that since his injury he; had worked for defendant as a blackmith, and received $2.50 per day, and defendant had paid his $3 per day before his injury.

There was no error in allowing this evidence to go to the jury, in connection with all the evidence, as tending to show the nature and extent of the injury plaintiff received. If it caused him to be slower and less efficient, in his earning capacity, as it tended to show, it was competent to he considered for that purpose. The fact that defendant gave the plaintiff employment at $2.50 a day after his injury, and then discharged him because he was too slow with his work, was in corroboration of plaintiff’s testimony, that the injury decreased his earning capacity as a blacksmith, in that it made it troublesome for him to handle his tongs and thereby disable him to do the same amount of work, and was less efficient in his earning capacity, since than before the injury.

Nor was there error in allowing the plaintiff to testify, that so far as he could see, it was not dangerous to take out the holts that held the pulley to the shaft-mg. Plaintiff liad testified that Bradley had told him to take the bolts out. In defendant’s 6th plea, it was set up, that plaintiff contributed próxima,telv to his injuries by taking out these bolts, when he knew or should have known that by so doing,, the shafting and pulley would fall. He had just testified that he did not know the shafting was broken until it fell and cut his finger off, and it was not illegal for him to testify as a fact, that so far as he could see it was not dangerous to take .out the bolts without tieing up the pulley. It was certainly not incompetent to deny knowledge of a fact with -which, as a matter of defense, he was charged by defendant.

The court gave 15 charges for the defendant, and all that were requested except the affirmative charges. The plaintiff requested no charges. Those given for defendant covered, and were intended to apply to, the different phases of defense set up by defendant. The affirmative charges were properly refused, since there was direct conflict in the evidence on material issues offered by the plaintiff and the defendant.

For the error in overruling the demurrer to the 5th count, let the judgment be reversed and the cause remanded.

Reversed and remanded.  