Anniston Pipe Works v. Dickey

• Decision Date: 24 June 1891
• Parties: ANNISTON PIPE-WORKS v. DICKEY.
• Court: Alabama Supreme Court

9 So. 720

93 Ala. 418

ANNISTON PIPE-WORKS v. DICKEY.

Supreme Court of Alabama

June 24, 1891

Appeal from city court of Anniston; B. F. CASSADY, Judge.

Action by W. H. Dickey against the Anniston Pipe-Works for personal injuries on account of the negligence of defendant or its employes. Trial to the court. Judgment for plaintiff, and defendant appeals. Reversed.

The action was founded on subdivisions 1 and 2 of section 2590 of the Code, providing, among other things, that the employer is liable for damages received by an employe in his service, the same as if the employe were a stranger, (1) when the injury is caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer; (2) when the injury is caused by reason of the negligence of any person in the service of the employer, who has any superintendence intrusted to him while in the exercise of such superintendence.

Knox & Bowie, for appellant.

A P. Ager and Benj. Micow, for appellee.

MCCLELLAN J.

This cause was tried below without a jury, and the present appeal presents for review the conclusion of the court on the evidence.

1. The complaint contains three counts. The first count alleges negligence of the defendant in respect of a defect in certain machinery,-a steam-crane,-in consequence of which the injury complained of was inflicted. A very considerable preponderance of the evidence satisfies us of the non-existence of this alleged defect, or that, if it existed at all, it had not arisen from, or been allowed to continue unremedied in consequence of, the negligence of the defendant, or any employe. Plaintiff can take nothing under that count, and it may as well be eliminated from further consideration. Railroad Co. v. Davis, (Ala.) 8 South Rep. 552.

2. The second and third counts rely upon the alleged negligence of one Calahan, who was intrusted by the defendant with the control of the steam-crane, in so operating it as to bring a heavy iron bar, which was being moved by it, in collision with another similar bar, near which plaintiff was standing or working, with such force as to hurl this latter bar against the person of the plaintiff, and crush his leg. There is no averment in the complaint that Calahan was a careless or reckless man, but only that he operated the crane on the occasion in question in a careless and negligent manner; nor is any claim made against the defendant on account of a want of care on its part in the employment and retention of Calahan; and, of course, the judgment below cannot be rested on that ground. All that is said in argument of counsel, therefore, as to defendant's liability because of having employed an unfit person to operate the crane, is outside of the record.

3. The pleas are "not guilty" and plaintiff's contributory negligence. Conceding that Calahan was guilty of negligence, but for which the injury would not have been sustained, we are of opinion from the evidence before us that plaintiff was himself so negligent as to defeat a recovery by him, unless the conduct of Calahan was reckless or wanton implying a willingness to inflict injury upon the plaintiff. Taking into consideration the uses of the steam-crane run by Calahan and of the hand-crane run by plaintiff; the necessity, in the nature of the work to be performed by each, that the operation of the latter should be such as not to interfere with or impede the former; the length of time plaintiff had been in the particular service; the evidence of other witnesses that the steam-crane had the "right of way" over the hand-cranes, and that it was the duty of those running the hand-cranes to be on the lookout for...