This case is before us after rehearing granted, pursuant to which reargument has been heard and further briefs considered, all of which followed the filing of opinion herein on September 13, 1934.
The history of the case is outline in the original opinion.
A majority of the Court are of the opinion that the evidence was sufficient to warrant recovery and to sustain the verdict under the issues presented by the pleadings and upon which the case was tried. It is contended, however, that reversible error was committed by the trial court in overruling defendant's demurrer to the first and second counts of plaintiff's declaration. The declaration was in three counts and each count attempted to state a cause of action based upon the same alleged wrongful act and for the same *Page 554 injury inflicted and received. The First and Second Counts were both defective in that they did not contain sufficient allegations to show either a duty upon the part of the defendant to furnish the plaintiff a safe place or safe appliances with which to accomplish the work which he was doing, or that the injury was willfully and maliciously inflicted. In the Third Count of the declaration the allegations were sufficient to show a duty upon the part of the defendant toward the plaintiff in regard to the furnishing of safe appliances with which to perform the work which was being performed by the plaintiff.
It was error to overrule the demurrer to the First and Second Counts of the declaration, but inasmuch as the verdict rendered was a general verdict and the Third Count of the declaration was a good and sufficient count, the error committed in overruling the demurrer to the First and Second Counts of the declaration became harmless. All the evidence admitted was admissible under the Third Count of the declaration. All of the charges given were applicable to the Third Count of the declaration, and, in fact, the whole case was tried upon the allegations of the Third Count of the declaration and the pleas applicable thereto. And so it is that should we order judgment entered for the defendant on the First and Second Counts of the declaration, there would still appear no error as to the judgment for the plaintiff on the Third Count of the declaration and the judgment should stand.
It was held in the original opinion herein that the judgment should be reversed because the Court, of its own motion, struck the fifth plea interposed by the defendant. On further consideration, a majority of the Court are of the opinion that no reversible error occurred by the action complained of. Everything that was alleged in the fifth plea *Page 555 was within the general issue of not guilty, or within the issues presented by the plea of contributory negligence. Pleas presenting these issues were interposed and presented issues upon which the case was tried.
It has been strenuously contended that the judgment should be reversed because it is alleged that the record shows that the plaintiff was superintendent in charge of the construction work and that he had control over all the machinery and implements used in the construction where he was injured. Our conclusion is that this contention is not tenable. The record not only fails to show this state of facts, but it shows conclusively that the plaintiff was injured by reason of the sticking of the brake on a drum; that the brake stuck because of its defective condition and that when it stuck it caused the machine to fail to function as it should have, with the result that a timber which was being moved was suspended in the air and swung back toward the point from which it had been carried on a cable constituting a part of the hoisting machinery, thereby striking and injuring the plaintiff.
The record shows that this hoisting machine which was being used to remove timber from the cofferdam was under the supervision and direction of the plaintiff only to the extent that he directed the operator of the machine as to what movements should be made with the hoisting apparatus just as he might direct a locomotive engineer as to where he should place cars or where he should stop the movement of cars and in what direction he should start the movement of cars. The record shows that he was not responsible either to the employees or to the owners for the condition of the machinery constituting the hoisting equipment. Other people were in charge of that representing the owners who were the defendants in this case. *Page 556
The record shows that that machinery was sent on the job in the condition in which it proved to be for the purpose of being used in the construction at the direction of the plaintiff. But, it was neither selected by the plaintiff for that work nor was he required to put it in condition for that work.
We think the judgment should be affirmed.
WHITFIELD, C. J., and DAVIS, J., concur.