Opinion
3 Div. 290.
November 28, 1918.
Appeal from Circuit Court, Escambia County; A. E. Gamble, Judge.
Gregory L. Smith Son, of Mobile, for appellant.
Page McMillan, of Evergreen, for appellee.
Pleas 3 and (a), to which demurrers were overruled, charge both contributory negligence and assumption of risk. Whether they be treated as the one or the other, we think the statement of facts in the pleas, in connection with the full statement in the complaint, is sufficient to support the conclusion charged, in so far as the pleas answer the first count. Ritch v. Kilby F. S. Co., 164 Ala. 131, 51 So. 377.
There is no presumption of law that a minor 17 years of age, engaged in this work, lacked either the experience or the intelligence which would warn him of the danger involved in replacing a belt upon a rapidly revolving pulley. If he was so lacking, the burden is upon him to plead and prove it.
These pleas are not based upon the conduct of plaintiff in remaining in defendant's service with knowledge of a defect in the machinery with which he was working, but upon his own independent and negligent conduct in handling it. Hence the case of Clinton Mining Co. v. Bradford, 192 Ala. 576, 69 So. 4, relied upon by appellant in that aspect of his demurrer, is not in point.
As an answer to the fifth count, plea 3 is in effect but a plea of the general issue. This count alleges that it was dangerous for plaintiff to undertake to place the belt on the pulley while it was revolving, but that plaintiff, "on account of his youth and lack of experience, did not understand or appreciate said danger," and that this was known to the superintendent, who required him to do the act in question, without warning him not to do so while the pulley was revolving. The plea also alleges that the act was dangerous, "which danger was open and obvious, and as open and obvious to the plaintiff as it was to the defendant." This evidently means to charge that the danger was apparent to plaintiff notwithstanding his youth and inexperience.
Plea (a) differs from plea 3 only in an immaterial detail, and we hold that there was no prejudicial error in overruling the demurrer to these pleas.
As pleas merely of assumption of risk, it may be conceded that these pleas were not good against count 5. L. N. R. R. Co. v. Handley, 174 Ala. 593, 56 So. 539. But, as pointed out above, they are, in their allegations, pleas of contributory negligence.
Plea 9 sets up contributory negligence, in that plaintiff chose an obviously dangerous way of proceeding when he "knew that there was a safer way to put said belt on the said pulley; that is to say, by stopping the said pulley or shafting from revolving, or slowing the said shafting or pulley down." Plaintiff demurred to this plea on the ground that it does not allege that the safer way was available to him.
"A corollary from the rule that an employé is bound to use ordinary care to avoid injury is that, when there are two ways of discharging the duties incident to his employment apparent to the employé — one dangerous and the other safe, or less dangerous — he must select the safe, or less dangerous way. * * * But this rule rests on the hypothesis that he can perform his duties as well and efficiently in one way as the other." H. A. B. R. R. Co. v. Walters, 91 Ala. 443, 8 So. 360; Mobile, etc., R. R. Co. v. Bromberg, 141 Ala. 258, 276, 38 So. 127.
It is not enough that plaintiff merely knew of a safer way to do the act in question, but the safer way must have been reasonably available for adoption by him. We think the demurrer to this plea was well taken, and should have been sustained.
Plaintiff's special replication to plea 9, as an answer to count 5, was but a repetition of the allegations of the complaint, and was therefore an unnecessary addition to the pleadings. Its elimination was not prejudicial.
The only other questions presented are upon the exclusions of evidence offered by the plaintiff.
Defendant's superintendent, Evans, testified on direct examination, relative to the shafts, pulleys, and machinery where plaintiff was hurt —
"That as far as he could see there could be no device rigged up on that situation there to relieve the danger of that situation; that since this boy was hurt they have not rigged up appliances there for that very purpose; * * * that he tried to figure something, but couldn't do it; * * * that there is nothing but the plain pulley and the plain shaft."
Plaintiff thereupon asked the witness, "The shaft hasn't been boxed in between the pulley and the post?" On objection by defendant, plaintiff's counsel stated to the court that he expected to show by the answer that after the accident the shaft was boxed in between the pulley and the post, so that when the belt slipped off of the pulley it would slip upon the boxing, and that it could be slipped back upon the pulley with much less danger than was incident to putting the belt back without the boxing. The question was excluded.
It is a rule of general, if not universal, recognition that it is not competent in actions like this to show that the defendant has, since the injury, repaired or changed the machinery or premises, whose defective condition is alleged to have caused the injury, as tending to show anterior negligence with respect thereto. This court has repeatedly so ruled. Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Going v. A. S. W. Co., 141 Ala. 537, 37 So. 784; Davis v. Kornman, 141 Ala. 479, 37 So. 789; Porter v. T. C. I. R. Co., 177 Ala. 406, 59 So. 255; 18 R. C. L. 126, § 121.
But where such evidence is offered, not to show anterior negligence as an independent fact, but to contradict or impeach a witness, or to lessen the weight of his expert opinion, it is admissible in proper cases for that purpose on general principles of relevancy and propriety; and numerous cases recognize and illustrate the rule. Frierson v. Frazier, 142 Ala. 232, 37 So. 825; Going v. A. S. W. Co., 141 Ala. 537, 37 So. 784; Young v. Hahn, 69 S.W. 203; Love v. Chambers Lbr. Co., 64 Or. 129, 129 P. 492; Phillips v. H. B. Shoe Co., 178 Mo. App. 196, 165 S.W. 1183. So, also, other special issues of fact may arise which render this evidence relevant and admissible. L. N. R. R. Co. v. Malone, 109 Ala. 518, 20 So. 33; C., O. G. R. R. Co. v. McDade, 191 U.S. 64, 69, 24 Sup. Ct. 24, 48 L.Ed. 96; Brazil Block Coal Co. v. Gibson, 160 Ind. 319, 66 N.E. 882, 98 Am. St. Rep. 281.
In the present case the testimony of the witness Evans, as quoted above, was clearly subject to impeachment by the question propounded, and its exclusion was prejudicial error.
We think the trial judge erred, also, in excluding the question to plaintiff's witness Crenshaw, testifying in rebuttal as to the condition of the shaft after the time of the accident, "was there a box built over this shaft?"
The facts that plaintiff's witness Baxley got hurt at the same place and in the same way as plaintiff a year or two previously, and that he was then about the same age as plaintiff when the latter was hurt, and that he did not appreciate the danger of putting the belt back on the pulley while it was in motion, were properly excluded from the evidence. Baxley's individual experience and intelligence, or lack of it, could shed no legitimate light on plaintiff's conduct, even though conditions may have been similar.
It is insisted by appellee that, even though the trial court committed error in excluding the questions above noted, there was no prejudice to plaintiff, because defendant was entitled to the general affirmative charge, both upon the plea of the general issue, and upon the pleas of contributory negligence and assumption of risk.
We have examined the evidence with due care, and we are of the opinion that the several issues of fact presented by the pleadings were properly submitted to the jury, since the evidence permitted reasonable inferences favorable to plaintiff on each of them. Prattville Cotton Mills Co. v. McKinney, 178 Ala. 554, 59 So. 498; Birmingham Candy Co. v. Shepherd, 14 Ala. App. 312, 70 So. 193.
One or two other questions are raised as to rulings on evidence, which, however, may not recur on another trial.
For the errors noted, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
McCLELLAN, SAYRE, and GARDNER, JJ., concur.