Coosa Pipe Foundry Co. v. Poindexter

ANDERSON, J.-

Count 1, as amended, was under subdivision 1 of section 3910 of the Code, and charged *661 a defect in the arbor through which the molten iron escaped which consisted in a hole in said arbor. We find nothing “duplex” about the count as suggested in brief of appellant’s counsel. The original count described the injury and instrumentality, and, while describing the arbor and hole, failed to set up that said hole constituted the defect, and the amendment to the complaint merely supplied this omission.

Count 4 charges that the defendant negligently failed to furnish plaintiff with reasonably safe cores, etc. It is true that this charge is preceded by the statement that it was the duty of the defendant to exercise “due” care to furnish plantiff with reasonably safe appliances, etc. The count would perhaps be better if it said it was the duty of the defendant to exercise reasonable skill and care to furnish reasonably safe appliances, but the word “due” does not charge that it was the defendant’s imperative, absolute duty, as the word “due” care means the duty owing the plaintiff by the defendant and which the law fixes as the exercise of reasonable care, and when this is followed by the further averment that the defendant negligently failed to furnish the plaintiff with reasonably safe cores, etc., this is the equivalent of charging that the defendant failed to exercise reasonable care in furnishing said core. — Sloss-Sheffield Co. v. Stewart, 172 Ala. 516 , 55 South. 785 ; Gray Eagle Co. v. Lewis, 161 Ala. 417 , 49 South. 859 ; Smith v. Watkins & Donelson, 172 Ala. 502 , 55 South. 611 ; Republic Co. v. Williams, 168 Ala. 612 , 53 South. 76 .

Defendant’s plea 5, if not otherwise bad, was defective in alleging that the defendant knew that hot iron when poured into the mold or core “might” explode or run out. Almost anything “might”, happen, and the plaintiff could not be guilty of negligence in this respect unless he knew that the hot iron would likely or- *662 probably explode when poured into tbe core or mold. Pleas 3 and á were also bad.

Charge 1 was the general charge for the defendant as to count 2, and this count was eliminated from the complaint. Defendant’s refused charges 3, 8, 9, 10, and 11 are the affirmative charges as to counts 1, 3, and 5, or as to the whole complaint, and which were properly refused, as there was evidence from which the jury could infer negligence as charged in said counts.

It was the duty of the defendant to exercise reasonble care to supply its employees with reasonably safe arbors, and there was evidence that the said arbors had been placed or left at a point for use and distribution, 'and some of which were in proper condition, and some were not; yet they had been placed together indiscriminately, and the defendant cannot escape liability, as matter of law, upon the idea that a fellow servant of the plaintiff had been handling the arbors and reopening the vents therein when clogged with molten metal, or because of the negligence of a fellow laborer in failing to discover the defects while in the discharge of his duty of carrying the arbors from the place of storage to the molders and in not taking only those which did not have holes in the bottom. The arbors were placed in a general pile to be used for molding pui’poses, and it was open for the jury to find that defendant was guilty of negligence in failing to furnish safe arbors when it caused or permitted bad ones to be commingled with good ones in a common pile for use or distribution. The duty of furnishing the servant with reasonably safe tools and appliances, suitable for the purposes for which they are furnished, is n on-clelegable, and the master cannot escape liability on account of the negligence of the plaintiff’s fellow servants in failing to properly assort the good from the bad, when removing from the point *663 where placed by the master for use. The master, in placing them at a certain place and in a common pile to be taken therefrom to the molders, should have furnished only those that were reasonably safe, and should not have included those that were defective, and the failure to assort the good from the bad could have been considered by the jury as the equivalent of negligently furnishing defective and unsafe arbors for molding purposes. So much of section 603 from Labatt on Master and Servant as is quoted in brief of appellant’s counsel is not opposed to the above. This section expressly states that, when the master has provided an adequate and readily accessible stock of suitable appliances “in good condition” from which to make a selection and the imperfection of an instrumentality selected therefrom was or ought to have been apparent to the servant who selected it, the master cannot be held responsible for injuries which are sustained by the use of that instrumentality, whether the sufferer be the servant himself who made the selection, or an employee.

Of course, if an imperfection or defect is apparent to the suffering servant, he would no doubt be chargeable with an assumption of risk, whether the selection was made by him or another servant; but we do not think that Mr. Labatt means to convey the idea that the master would be permitted to furnish certain tools or appliances for a certain purpose, all alike except that some are sound and some defective owing to small holes in the bottom of same, and delegate to an ordinary laborer the duty of selecting the good from the bad and furnishing only the good to the molder, and thereby escape liability to an injured molder because of the negligence of the ordinary laborer in selecting and furnishing the appliances to the molder from the common pile, when all of them had been placed there for the same use' or *664 purpose. It was the duty of the master to furnish reasonably safe arbors, and, when this defendant furnished good and bad ones mixed, it was open to the jury to find that it breached the duty owing the plaintiff in delegating the selection to the negro laborers when delivering them to the molders, as it was but an attempt to delegate to them the duty of furnishing safe arbors, and which said delegation is not authorized by law. We are of the opinion that Mr. Labatt, by section 603 of his work, meant that the master was not responsible for the selection of tools, which were not defective, but which were not suitable for the purposes for which they had been selected and were not put there by a master to be used for that special purpose.

In other words, if the master furnished good appliances or tools for the purpose for which he furnishes them and a servant selects or uses them for some other purpose, the master would not be liable, and this idea is borne out by the last part of the section, which is not included in the quotation in appellant’s brief. Says Mr. Labatt in section 26: .“Although it is a master’s duty to use due care to furnish his servants tools and appliances suitable for the purpose for which they are provided, he owes them no such duty when they put his tools to uses for which they were not intended.” This eminent writer (Mr. Labatt) evidently did not intend to convey the idea that the master could discharge his duty by furnishing tools or appliances in bulk, some good and some defective, and then escape liability to an injured servant because a fellow servant, charged with the duty of carrying the appliance to him for use, failed to do what the master should have done at the start, to wit, select'the bad from the good. If the master failed to select the bad from the good, he furnished defective arbors as well as good ones. Moreover, if the rule *665 was different, it was a question for the jury as to whether or not the laborers charged with taking the arbors to the molders were guilty of negligence in delivering those with holes in the bottom as well as in the top, as there was no proof that they knew this rendered them dangerous or defective.

On the other hand, if it can be assumed that the arbors did not contain holes in the bottom when originally furnished, which is not the case, still the defendant was not entitled to the general charge under the whole complaint or the one under the statute, as there was evidence from which the jury could infer that the defect was known to a superintendent or that he was guilty of negligence in failing to discover and remedy same.

Charge 5, refused the defendant, was contrary to the principles laid down in discussing the general charge, and charges 6 and 12, whether good or bad, were covered by given charges 24, 25, 28, 34, 37, and 39.

There was no reversible error in the rulings upon the evidence.

The judgment of the city court is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.