Barger v. Oswalt

• Decision Date: 28 March 1940
• Docket Number: 6 Div. 608.
• Parties: BARGER v. OSWALT.
• Court: Alabama Supreme Court

194 So. 884

239 Ala. 289

BARGER v. OSWALT.

6 Div. 608.

Supreme Court of Alabama

March 28, 1940

Appeal from Circuit Court, Tuscaloosa County; Tom B. Ward, Special Judge.

Action for damages for personal injuries by Houston Barger, a minor suing by his next friend, R. H. Barger, against Ottie Oswalt. From a judgment for defendant, plaintiff appeals.

Affirmed.

R. C Price, of Tuscaloosa, for appellant.

W. C Warren and J. M. Ward, both of Tuscaloosa, for appellee.

BOULDIN Justice.

Houston Barger sued Ottie Oswalt for personal injuries. The alleged cause of action is based on the relation of master and servant. There was verdict for defendant.

Defendant was the owner of and personally operating a small sawmill with tractor power. Plaintiff was an employee working at the mill.

On the occasion of the accident the mill was sawing, as suitable logs came in, some heavy green pine timbers, 14X14 inches, 16 feet long, and 8X16 inches, 16 feet long. When one of these timbers was sawed, all hands, as part of their duties assisted in removing the timber from the carriage. Including defendant, there were six men working at the mill.

One of these timbers was sawed; the carriage moved on to where the rear end of the timber cleared the saw 3 to 5 feet, according to estimates of different witnesses. The circle saw was left running. Defendant was acting sawyer.

The method of removing the timber adopted by defendant, his own superintendent, was to push by hand and slide the timber forward on the carriage until it was clear.

All the men gathered about the timber ready for removal. Plaintiff took his position at the rear end of the log next to the revolving saw. His right foot rested on a crosspiece extending from under the carriage track; he placed his left foot on the rail of the carriage track; pushing from this position, his left foot slipped, was caught in the revolving saw; some toes and a portion of the foot were amputated.

Plaintiff was given no orders as to the position he should take. So far as appears, defendant was at the forward end of the log and knew nothing of plaintiff's position until he was injured. The plaintiff, so far as appears, voluntarily took that position in the belief he could better push from the end. No necessity to take this position appears in evidence or in inference therefrom. He knew all the conditions; was a young man nearing twenty-one years of age; had worked at this mill several months, and at others from time to time, for two years. The foregoing facts appear without conflict in the evidence.

The record is somewhat voluminous. There are more than one hundred assignments of error.

The complaint contained 17 counts. Demurrers were sustained to 7 of them, and overruled as to 10.

Touching the rulings on demurrer suffice to say the counts submitted to the jury covered every phase of alleged negligence set up in those eliminated, and called for no further proof.

So far as evidence tended to support the several counts, they rest upon the common law duty of the master to furnish the servant a reasonably safe place to work. For example, they charge negligence in leaving the saw running; in stopping the carriage in dangerous proximity thereto; in obstructing the track with unloaded timbers preventing the carriage from clearing the saw a safe distance; in...