Southern Railway v. Guyton , 122 Ala. 231 ( 1898 )

SHARPE, J.

— This action Avas brought by appellee under the statute knoAvn as the employers’ act, to recover for injuries sustained by him while engaged in operating a hand-car, AAdiich. injuries are alleged to haATe resulted from negligence imputable to the appellant by Avhom he was employed.

The complaint contains five counts which vary only in respect to the kind of negligence averred as having caused the injury. A demurrer was interposed to each of the second, third and fifth count, and those to the second and third counts, respectively, were'overruled, and that to the fifth count was sustained. The general issue and several special pleas, each setting up contributory negligence, were interposed to the first, second, third and fourth counts, respectively. On the trial the defendant requested a general affirmative charge in its favor as to the whole case, and separately as to each of the counts 1, 2, 3 and 4, of which charges, that relating to the first count Avas given by the court, and those relating to the whole case and to the second, third and fourth counts, respectiAely, were refused.

Counts 2 and 3 of the complaint are, under our system of pleading, sufficiently specific in respect to the defects alleged to lutve caused the accident, and, therefore, Avere not subject to the demurrers. — Mary Lee Coal & Railway Co. v.Chambliss, 97 Ala. 171; Ga. Pac. R’y Co. v. Davis, 92 Ala. 307.

Plea 2 avers as a mere naked conclusion the want of due care on the part of the plaintiff, which is equivalent only to a general averment of negligence, and Avas therefore insufficient.

The averment of plea 3, that the plaintiff voluntarily incurred the danger of collision, taken in a usual sense and in the sense that will be accorded to it as against the pleader, asserts no more than that the plaintiff’s action was without compulsion, which falls short of showing an intentional assumption by him of an obvious risk.

The demurrers to these pleas do not appear in the transcript, but in such case we will presume that they were upon proper grounds. — Hodge et al. v. Tufts, 115 Ala. 366.

The evidence is not sufficient to support the second and third counts of the complaint. The nearest approach to proof of the defects alleged to have caused the derailment of the car appears in the testimony of the witness Hixon, to effect that within a few months prior to the accident he had thought and stated that the car was out of plumb or out of repair and had applied for a new car, but that he had afterwards concluded differently, and could not say as matter of fact or opinion that it was out of plumb or out of repair, that his real reason for applying for a new car was tliat this one did not run as fast as he desired, but upon subsequent tests of speed he fully decided that there Avas nothing the matter Avith the car, and that there might or might not have been. The appellee Avas not entitled to recover under the second or third counts without proof of the alleged defect and also of its causal connection with the injury, neither of Avhich facts are here shoAvn, and therefore there was error in refusing charges numbered 3 and 4 requested by appellant.

Appellant’s charges numbered 10 and 1J should have been given. If an employé quits the Avork assigned to him by his employer and Amluntarily undertakes to do work about which he had no duties to perform by Adrtue of the contractual relation existing between him and his employer, then while such condition exists the duty groAving out of that relation of using care for his safety does not rest on the employer. Therefore, the rule obtains that to hold an employer liable as such for injury resulting from a breach of such duty, it must appear that the employé Avas at the time of the injury acting within the scope of his employment. — Ga. Pac. Railway v. Propst, 85 Ala. 203. Such scope, however, would include Avork specially assigned to him by the employer as well as that upon which he was usually employed.

In the testimony of the Avitness Hixon there was evidence tending to sIioav that plaintiff AAas a mere volunteer in the operation of the hand-car and trucks; Avhile on the other hand there was eAddence tending to show that he was employed by appellant to Avorlc as a section hand on its road-bed, that he had been working under foreman J. D. Guyton on the section adjoining the one upon Avhich he was then working, that on the day of the injury J. I). Guyton, by direction of Supervisor Nelson who had control of the foremen and crews of both sections, sent appellee to work under foreman Hixon on his section, where pursuant to his directions he Avas so working when injured. If such was the true condition, it could not be held that appellee was acting out of the scope of his employment, nor did ignorance of those directions on the part of Hixon affect the real relation existing between the plaintiff and defendant, nor the relation in Avhich he as superintendent, stood to the plaintiff, if he was in fact exercising superintendence. The inquiry as to whether the appellee was such volunteer being a material one and the testimony being in conflict thereon, it was proper to be submitted to the jury as requested by charges 10 and 11.

Charge (5 relates to the defense of contributory negligonce, and may be considered together with the other charges as to which error is assigned, since if it be held good it would seem to follow that the defendant was entitled to the general affirmative charge as to the Avhole case.

An employé is held by the law to the use of ordinary care for his oaaui safety; so that if he voluntarily undertakes to do Avork attended Avitli danger Avhich is obvious, he impliedly assumes the risk urvolved in its execution. It does not follow, hoAvever, that he is guilty of negligence in Avorking merely because he Icuoavs the work to be dangerous without regard to the degree of danger and risk invoked, nor unless it be of a degree which Avould ordinarily deter one of ordinary prudence from the undertaking. — Woodward Iron Co. v. Andrews, 114 Ala. 243; Eureka Co. v. Bass, 81 Ala. 200. The rule requiring the exercise of ordinary prudence applies in determining the question of negligence on the part of the plaintiff, and it also applies in fixing the charge of negligence upon the defendant, but Avitli this additional consideration, that in the matter of investigating a risk Avhich is not plainly apparent in the nature of the work, the employer and employé do not always stand on the same footing, since the employé may to some extent rely upon the judgment of the employer, or of a superior in the same service. — Cook. v. Railroad, 34 Minn. 45; Russell v. Railroad, 32 Minn. 230; 7 Am. & Eng. Ency. Law, 423; Wood’s Master and Servant, 718 el seq. This principle is applicable in this case in connection with the plaintiff’s testimony to effect that the foreman told him that the transaction in question Avas not dangerous. Whether so sending the trucks involved much or little danger depended mainly upon the grade by which the road descended, which does not appear from the evidence more definitely than by the statement of a witness that it was a “very heavy grade,” together Avitli such inferenees as may be drawn from the statement of a witness to effect that the truck ran down by its natural force at a speed of five or six miles per hour. The principle applicable to such facts is that which leaves the cpiestion of negligence to the jury though the facts be undisputed where the inference to be drawn from them is uncertain. Charge 6, whether considered abstractly or with reference to the evidence, would compute to the plaintiff contributory negligence upon the hypothesis merely that he knew the undertaking to be dangerous without regard to the degree of danger apparent, and was properly refused.

There was evidence tending to shoiv that appellee’s foot was injured by the truck which by the foreman’s direction followed the hand-car down the grade without means for controlling its descent. In view- of this phase of the testimony and of all the circumstances in proof, it was proper to submit the questions arising under the fourth count of the complaint as well as the question of contributory negligence, to the consideration of the jury.

The manner in which the accident occurred is in doubt, and the evidence relating to the condition of the handcar was relevant upon that inquiry.

For the errors mentioned the judgment is reversed and the cause remanded.

Reversed and remanded.