Roberts v. Pell City Mfg. Co.

Decision Date08 June 1916
Docket Number7 Div. 741
PartiesROBERTS v. PELL CITY MFG. CO.
CourtAlabama Supreme Court

Appeal from Circuit Court, St. Clair County; J.E. Blackwood, Judge.

Action by Herman Roberts, pro ami, against the Pell City Manufacturing Company. Judgment for defendant, and plaintiff appeals. Affirmed.

S.W Tate, of Anniston, for appellant.

M.M. &amp Victor Smith, of Pell City, for appellee.

McCLELLAN J.

Herman Roberts was engaged in the appellee's service when the personal injury described in the complaint overtook him. He was then 19 years of age. The roof of a building used by appellee in its business was being repaired. This roof was made by the spreading of hot tar on some character of more permanent surface. Roberts' duty was to carry by hand buckets (two) of hot tar from one edge of the roof, across the roof, to the place where a defect in the roof was being repaired. He had repeatedly safely rendered this service during that day, before injured. While carrying two buckets to the repair men, he fell, and in falling his hand went into one of the buckets of hot tar and was thereby injured.

The complaint contains six counts. The first charged a defect in the condition of the ways, works, etc., under the first subdivision of the Employers' Liability Act (section 3910 of the Code), the defect being alleged to be: "Said roof was defective; said roof was slippery; said roof was wet." The second count was drawn under the second subdivision of the Employers' Liability Act, and alleged that the superintendent "negligently permitted the roof of said building to be and remain in a defective condition," or "negligently allowed said roof of said building to become wet and slippery." The third count, drawn to state a cause of action under the third subdivision of the Employers' Liability Act, ascribes the plaintiff's injury to a negligent order or orders, being thus described therein:

"He negligently ordered the plaintiff to carry tar on the roof of said building when said roof was defective, which was known to said Locke, or he could have known the same by the exercise of reasonable diligence. He negligently ordered plaintiff to carry tar on said roof when he knew the same to be defective. He negligently ordered plaintiff to carry tar on said roof when he knew the same was wet and slippery, or he could have know the same by the exercise of reasonable diligence."

The fourth count impleaded the defendant for an alleged breach of the common-law duty to furnish him a reasonably safe place in which to work; the breach of this duty being specified in the count as follows:

"The roof of said building was allowed to be and remain wet and slippery. The roof of said building was allowed to be and remain in a defective condition."

The fifth count attributed the plaintiff's injury to the negligent failure to warn him, "a minor and inexperienced in the duties which he was required to perform," of the danger of the work he was directed to perform, and to advise him how to avoid danger from the service in which he was then engaged. The sixth count charged a breach of the same duty alleged in the fifth count.

The court gave the general charge for the defendant. That action is the basis of the only error assigned. There was no evidence to sustain material averments in counts 1 to 4 inclusive. The place at which the plaintiff received his injury was on the roof. At the point where he was injured no defect in the condition of the roof was...

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8 cases
  • Louisville & N. R. Co. v. Parker, 6 Div. 471.
    • United States
    • Supreme Court of Alabama
    • 27 Junio 1931
    ...... So. 176, Ann. Cas. 1912B, 461; Foley v. Pioneer Min. &. Mfg. Co., 144 Ala. 182, 40 So. 273; Osborne,. Adm'x, v. Alabama Steel & ... 1008; S. A. L. Ry. v. Hackney, 217 Ala. 382, 115 So. 869; Roberts v. Pell City Mfg. Co., 197 Ala. 106, 72. So. 341; Louisville & N. R. v. ......
  • Haverland v. Potlatch Lumber Co.
    • United States
    • United States State Supreme Court of Idaho
    • 29 Julio 1921
    ......157; Smith. v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546;. Bohn Mfg. Co. v. Erickson, 55 F. 943, 5 C. C. A. 341; Lake v. Shenango Furnace ...380, 125 N.W. 916, 27 L. R. A., N. S., 982; Roberts v. Pell City Mfg. Co.,. 197 Ala. 106, 72 So. 341; Meyers v. Bennett Auto ......
  • Faulkner v. Middleton
    • United States
    • United States State Supreme Court of Mississippi
    • 11 Septiembre 1939
    ...as a common laborer in a log camp; therefore, the appellee stood and stands in the same position as an adult. 39 C. J. 383; Roberts v. Pell City Mfg. Co., 72 So. 341; Seaboard Airline Ry. Co. v. Hackney, 115 So. Under the testimony in this case, the assurance by Guion that said wedge could ......
  • Middleton v. Faulkner
    • United States
    • United States State Supreme Court of Mississippi
    • 7 Febrero 1938
    ...... impending danger. [180 Miss. 740] . . . Marston. v. City of Portsmouth, 78 N.H. 223, 99 A. 93. . . Even in. a case ... v. Fordeck, 34 Ind.App. 181, 71 N.E. 163; Famous. Mfg. Co. v. Harmon, 28 Ind.App. 117, 62 N.E. 306;. Duerst v. St. Louis ... adult. . . 39 C. J., pages 283 and 507; Roberts v. Pell City Mfg. Co., 72 So. 341; Seaboard Air Line Ry. v. Hackney, 115. ......
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