Abbott v. Alabama Power Co.

• Decision Date: 18 March 1926
• Docket Number: 7 Div. 612
• Citation: 107 So. 811,214 Ala. 281
• Parties: ABBOTT v. ALABAMA POWER CO. et al.
• Court: Alabama Supreme Court

107 So. 811

214 Ala. 281

ABBOTT v. ALABAMA POWER CO. et al.

7 Div. 612

Supreme Court of Alabama

March 18, 1926

Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.

Action by Otha Franklin Abbott, by his next friend, Benjamin F Abbott, against the Alabama Power Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Longshore & Longshore, of Columbiana, and H.A. Emerson, of Anniston for appellant.

Knox Acker, Sterne & Liles, of Anniston, for appellees.

ANDERSON C.J.

Each count of the complaint avers that the plaintiff was a guest or invitee, when the proof shows that he was an employee on or about the premises. But aside from this, we think that the proof shows that there was no implied invitation to any one to use or get on the merry-go-round. The motor had been removed, and it was tied or fastened except when the fastening was removed by outsiders, and the defendant Hulsey instead of inviting people to use it, forbade them from doing so whenever he saw them about the machine or vehicle. Again, if it be conceded that there was an implied invitation to use or ride the merry-go-round, there was no invitation, express or implied, to anyone to climb many feet above the seats and above the rafters and practically to the top, where the plaintiff came in contact with the cogs. Nor was there any negligence in not inclosing the cogs, which were open to observation, and defendant had no right to apprehend or anticipate that the ordinary person would climb to the top of the machine when in action. Aside from the foregoing reasons, the plaintiff could not recover, as for an attractive nuisance, as he was a boy of intelligence and over 15 years of age. Central R.R. of Ga. v. Robins, 95 So. 367, 209 Ala. 6, 36 A.L.R. 10.

Moreover, the Alabama Power Company was entitled to the general affirmative charge for still another reason, as the undisputed evidence shows that it leased the premises and outfit long before the accident, and there was no proof of any latent defect at the time of leasing which caused the injury in question, or that it in any way participated in the operation or maintenance of the machine. Morgan v. Sheppard, 47 So. 147, 156 Ala. 403; Smith v. Hallock, 98 So. 781, 210 Ala. 529.

As the plea of the general issue was in and the plaintiff failed to make out a case, if the trial court erred in overruling the demurrer to any of the special pleas, it was...