Opinion
8 Div. 4.
May 10, 1917.
Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.
Tillman, Bradley Morrow and L. C. Leadbeater, all of Birmingham, and Travis Williams, of Russellville, for appellant. W. L. Chenault, of Russellville, and A. H. Carmichael, of Tuscumbia, for appellee.
The action was for personal injury. At the trial all the counts save that numbered 6 were withdrawn. Defendant pleaded the general issue, and contributory negligence.
Plaintiff based her asserted right of recovery on the negligence of one Hickey, as superintendent of the steam shovel at which plaintiff's intestate was working when he received the injury resulting in his death.
The count was not subject to the demurrers directed thereto. Collier v. T. C., I. R. R. Co., 155 Ala. 375, 46 So. 487; T. C., I. R. R. Co. v. Moore, 194 Ala. 134, 69 So. 540; A. G. S. R. R. Co. v. Choate, 184 Ala. 636, 640, 64 So. 78; 2 Labatt, Master and Servant, §§ 679, 737.
As to the ruling of the court on defendant's plea of contributory negligence, no error was committed. To withstand an appropriate demurrer, a plea of contributory negligence must go beyond averring negligence as a conclusion, and must aver a state of facts to which the law attaches that conclusion. Osborne v. Ala. S. W. Co., 135 Ala. 571, 33 So. 687; T. C., I. R. R. Co. v. Herndon, 100 Ala. 451, 14 So. 287; L. N. R. R. Co. v. Markee, 103 Ala. 160, 15 So. 511, 49 Am. St. Rep. 21; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933, and authorities there collected.
The master is not required to use the best possible appliances in the conduct of his business, but may show that the appliances adopted and so used by him are such as are employed by many prudent persons engaged in the same business under like circumstances. Such fact shown, however, does not necessarily exempt an employer from liability. Prudent persons may do imprudent things, and fail to use proper appliances in the conduct of their business; and for such negligent failure, in a proper case, would be liable to those to whom the duty of prudence and care is due, for injury the proximate result of such negligent failure. Reynolds v. Woodward Iron Co., 74 So. 360; Davis v. Kornman, 141 Ala. 479, 37 So. 789; Prattville Cotton Mills v. McKinney, 178 Ala. 554, 59 So. 498; Caldwell-Watson F. M. Co. v. Watson, 183 Ala. 326, 62 So. 859; L. N. R. R. Co. v. Allen's Adm'r, 78 Ala. 494.
199 Ala. 231.
Did the court commit error in sustaining plaintiff's objection to the question propounded to the witness, Hickey, by the defendant, on cross-examination:
"Was that steam shovel at that time being operated with the front of it any higher than is ordinary in the operation of steam shovels by well-regulated companies of this character?"
While a witness is presumed to be competent unless the contrary is made to appear, he is not presumed to be qualified by knowledge, and his proponent must show that the witness has such knowledge if it does not otherwise appear. The absence of such a showing in the instant case was called to the attention of court and counsel by the very ground of objection assigned by plaintiff to the question. The exclusion of the question may be justified for this reason, on the authority of B. R. L. P. Co. v. Barrett, 179 Ala. 274, 290, 291, 60 So. 262; Torbert v. State, 87 Ala. 27, 6 So. 284. We have examined the evidence, and it is clear that a jury question was presented. Amerson v. Corona Coal Iron Co., 194 Ala. 175, 69 So. 601.
There was no error in refusing the affirmative charge requested by defendant, nor in denying its motion for a new trial. N.C. St. L. Ry. v. Crosby, 194 Ala. 338, 70 So. 7; Cobb v. Malone, 92 Ala. 630, 9 So. 738.
Let the judgment of the circuit court be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.