Opinion
7 Div. 475.
June 30, 1917.
Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.
Action by Robert Oscar Knight against the Harbison-Walker Refractories Company Judgment for plaintiff, and defendant appeals. Affirmed.
Count B, after stating the employment, and while helping to move a rock, a tree then and there standing in or beside said rock quarry fell upon plaintiff, wherefore he suffered many injuries, which are catalogued, alleges that at the time he was injured as aforesaid there was a person in the service of defendant at said time and place, to wit, Joe Eason, and plaintiff was in duty bound to conform to the orders or directions of said Eason, and that said Eason negligently ordered plaintiff to go and work at the place where he was injured as aforesaid, knowing it was dangerous for plaintiff to work there, or he ought to have so known, and by the exercise of reasonable diligence could have so known, and plaintiff conformed to said orders or directions, and his said injuries resulted from his having so conformed. Count D sufficiently appears.
The following charges were refused to defendant:
(8) If the jury believe from the evidence that the danger to persons working where plaintiff was working when he was injured, of the tree falling on them, could not have been discovered by any ordinary instruction, their verdict should be for defendant.
(10) The court instructs the jury that defendant is not liable to plaintiff in this action, unless they are satisfied from the evidence that plaintiff's injury resulted from the negligence of defendant, or of defendant's superintendent, Eason.
N.L. Miller, of Birmingham, and R.F. Conner, of Center, for appellant. Hugh White, of Gadsden, and Hugh Reed, of Center, for appellee.
Count B of the complaint, which is framed under subdivision 3 of section 3910 of the Code of 1907, was not subject to the ground of demurrer assigned, and the ruling of the court thereon was free from error. Reiter-Connolly Mfg. Co. v. Hamlin, as Adm'r, 144 Ala. 192, 40 So. 280; Sloss-Sheffield Steel Iron Co. v. Dobbs, 187 Ala. 452, 65 So. 360; Alabama Consolidated C. I. Co. v. Heald, 171 Ala. 263, 55 So. 181; L. N. R. R. Co. v. Bargainier, 168 Ala. 567, 53 So. 138; Alabama Steel Iron Co. v. Tallant, 165 Ala. 521, 51 So. 835; Tenn. Coal, I. R. R. Co. v. Williamson, 164 Ala. 54, 51 So. 144.
Count C avers that Eason was intrusted with superintendence over the work and the men engaged in the work, and it was negligence for him to create or allow such condition of things to exist as would render injury to one of the employés under him probable, through the means of an intervening agency. Sloss-Sheffield Steel Iron Co. v. Green, 159 Ala. 182, 49 So. 301; Tenn. Coal, I. R. R. Co. v. George, 161 Ala. 422, 49 So. 681; Louisville Nashville R. R. Co. v. Handley, 174 Ala. 593, 56 So. 539.
Pleas of assumption of risk are not good to counts under subdivisions 2 and 3 of the Employers' Liability Statute (Code 1907, § 3910). L. N. R. R. Co. v. Handley, supra. Pleas 2 and 3 were pleas of assumption of risk, and the demurrers were properly sustained.
There was evidence tending to support both counts B and C, and the affirmative charges as to the whole case and as to the separate counts were refused without error.
Charge 8 was properly refused. The law does not define "ordinary inspection," but imposes on the defendant's superintendent the duty of using ordinary and reasonable care to conserve the safety of the other employés under him. Sloss-Sheffield S. I. Co. v. Green, supra.
Charge 10 ignores the issue presented by count B, and was therefore calculated to mislead the jury. It was also bad for requiring the jury to be "satisfied." Reasonably satisfied is all the law requires. U.S. F. G. Co. v. Charles, 131 Ala. 658, 31 So. 558, 57 L.R.A. 212; Southern Ry. Co. v. Riddle, 126 Ala. 244, 28 So. 422.
There was evidence which, if believed, authorized the verdict rendered, and we do not feel authorized to overturn the finding of the jury and the order of the trial court overruling the motion for a new trial. Southern Ry. Co. v. Kirsch, 150 Ala. 659, 43 So. 796.
Affirmed.