Alabama Steel & Wire Co. v. Wrenn

• Decision Date: 03 February 1903
• Citation: 34 So. 970,136 Ala. 475
• Parties: ALABAMA STEEL & WIRE CO. v. WRENN.
• Court: Alabama Supreme Court

34 So. 970

136 Ala. 475

ALABAMA STEEL & WIRE CO. v. WRENN.

Supreme Court of Alabama

February 3, 1903

Appeal from City Court of Birmingham; Wm. W. Wilkerson, Judge.

Action by William Wrenn against the Alabama Steel & Wire Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The complaint contained several counts, but, as stated in the opinion, the cause was tried on count "f." This count was in words and figures as follows: "(f) Plaintiff claims of the defendant, a private corporation, the further sum of ten thousand dollars damages, for that whereas on the 9th day of April, 1900, the defendant was engaged in operating a machine shop in connection with its rod and wire mill near Ensley, Ala., and in the course of its business in said shop heavy castings or metal bodies were moved or hoisted by means of a block and chain; and plaintiff avers that on, to wit, the 9th day of April, 1900, while so employed by defendant in said shop in moving or hoisting one of said castings or metal bodies, to wit, a nail-bed machine by means of a block and chain as aforesaid, his left foot was caught by said casting or nail bed falling on same, and so badly mashed that four toes and a part of said foot had to be amputated shortly thereafter. And plaintiff avers that said injury was caused as aforesaid as a proximate consequence and by reason of the negligence of Harry Cassidy, a person in the service or employment of defendant who had superintendence intrusted to him, while in the exercise of such superintendence, viz.: Plaintiff was inexperienced in said work, by reason whereof said work was dangerous to plaintiff and the said Harry Cassidy, with knowledge of plaintiff's inexperience and the danger to him in said work, caused to work at said work plaintiff, who was inexperienced therein and negligently failed to warn and instruct him, or see that he was warned and instructed, concerning the danger thereof. By reason of said negligent failure to warn and instruct under the circumstances aforesaid, plaintiff was injured as aforesaid." The count then avers the incurring of expense for medicine and nursing, and the great bodily suffering and mental pain, etc.

To count "f'¤the defendant demurred upon the following grounds: "(1) It does not appear therefrom that the work at which plaintiff was working was dangerous. (2) It does not allege any duty owing by defendant to plaintiff, a violation of which would give plaintiff the right to bring this suit. (3) It does not appear therefrom that plaintiff was not aware of the alleged danger. (4) Said count does not set up sufficient facts showing a necessity for warning and instruction. (5) It does not appear therefrom that the negligence complained of proximately caused the alleged injury. (6) It does not appear therefrom that Cassidy was intrusted with the superintendence of seeing that plaintiff was warned and instructed concerning the danger of said work." This demurrer to count "f" was overruled. The defendant pleaded the general issue, and several special pleas setting up contributory negligence on the part of the plaintiff; but, under the opinion on the present appeal, it is unnecessary to set out these pleas at length.

The bill of exceptions contains the following recital as to the request of the defendant for a continuance, and the rulings of the court thereon: "The plaintiff and defendant had each announced ready for trial, and after the jury had been selected the plaintiff was allowed to amend the complaint by adding thereto counts marked 'a,' 'b,' 'c,' 'd,' 'e,' 'f,' and 'g,' and the defendant then and there in open court objected to the court's ruling in allowing said amendment by adding said new additional counts, which objection the court overruled, to which ruling of the court the defendant then and there duly excepted. Whereupon, after the court had allowed plaintiff to so amend his complaint by the addition of said new counts, the plaintiff withdrew all the original counts of the complaint, except count 4, and the defendant then and there in open court requested the court to grant or allow the defendant a continuance of the cause because said new additional counts introduced new matter and new and different cause of complaint that was not contained in the original counts of the complaint on file when the defendant announced ready for trial, and that defendant was taken by surprise by the addition of said new counts, and was not ready or prepared to defend against the same, and for the additional reason that defendant's most material witness one Harry Cassidy, was absent from the state, and that defendant had taken his deposition, which was in court, but that defendant did not have an opportunity to examine said Cassidy as to the additional counts because the same had not been filed at the time of the examination of said witness and that, of the additional counts, counts 'd,' 'e,' 'f,' and 'g' charged the cause of the injury to plaintiff to be due to said Cassidy's negligence, and that defendant desired to examine said Cassidy as to said additional counts. In support of said request of defendant to continue said cause it was in evidence before the court that plaintiff's counsel had prepared the additional counts several days prior to the day the case was called for trial, and had not shown them to defendant's counsel, although defendant's and plaintiff's counsel both had been waiting at various times in the courtroom during two days to try the case, and that said additional counts were not filed or asked to be allowed by the court until defendant's counsel had announced ready on the original complaint, and until after the jury had been selected that plaintiff's attorney had not had said counts in court, but in his office, a block away. It was also in evidence before the court that the interrogatories propounded to the witness Cassidy were filed in court on March 21, 1901, and the cross-interrogatories were filed on March 22, 1901, and that the additional counts were added to the complaint on May 25, 1901. In response to an inquiry by the court defendant's attorney said he would not state that it would be necessary to retake Cassidy's testimony, but it might be. He further stated in answer to an inquiry that he had examined Cassidy in the interrogatories already taken, upon the theory that he was one of those charged with negligence under the original complaint. The court stated to defendant's attorney that he would not be forced to trial if he could show to the court wherein he could present at a later time any evidence that he was not prepared to present at the present time, and that he would be allowed time within which to examine the new counts for that purpose. After such examinations, defendant's attorney said he could not state to the court that he would have other evidence on the trial if the cause was continued but that he might have. Thereupon the court overruled defendant's request for a continuance and declined and refused to allow the cause to be continued, and to this ruling of the court in so declining and refusing to allow the cause to be continued, the defendant then and there duly excepted."

The following facts were shown by the evidence: At the time of the injury the plaintiff was just 21 years old, and had been working in the defendant's shop as a helper, and at different machines, for a period of about 4 months. At the time of sustaining the injuries he was under the direction of Henry Cassidy, the superintendent of the defendant's shop, and was working at a drill press, which was a machine used for drilling holes in steel and iron, etc. The work he was engaged on was in drilling holes in a nail-bed machine, which weighed between 3,000 pounds and 3,500 pounds. In drilling holes in the nail bed it was lying on the drill press in a flat position. Shortly before the accident, the plaintiff, together with others, had by means of a block and tackle turned the nail-bed machine from its flat side up on its edge. In the course of his work it became necessary for the plaintiff to lower the nail bed from its edgewise position back to its flat side, and this had to be accomplished by means of a block and tackle, and plaintiff had been directed by Cassidy, the superintendent of the defendant, to take charge of the work, and three men had been given him as helpers to assist him in lowering the nail bed. The chain of the block and tackle was attached to the nail bed under the plaintiff's direction, and while they were lifting the nail bed in order to change its position, it tilted forward, and as the plaintiff was crossing the drill press where the nail bed was to be placed, the bed fell on his foot, inflicting the injuries complained of. The plaintiff had assisted in turning the nail bed on the drill press several times before the injury under the direction of Cassidy. Although the plaintiff was standing on the drill press at the time of the injury, there was a place where a man could stand on the side of the press where he would not have been hurt by the falling of the nail bed. The plaintiff was without experience in machine shops, not having worked anywhere except on a farm prior to the time he was employed by the defendant.

The evidence for the plaintiff tended to show that he was not instructed as to the manner of doing the work, nor warned of the dangers incident thereto.

The evidence for the defendant, including the testimony of Cassidy, tended to show that after the plaintiff was employed he was instructed by Cassidy how to work the drill press, and to do the other work which he was given to do, and was told and warned of the dangers incident thereto.

The plaintiff introduced as a witness one Thomas Harris, who testified that he was a machinist,...