Bierley v. Shelby Iron Co.

• Decision Date: 22 June 1922
• Docket Number: 7 Div. 232.
• Citation: 93 So. 829,208 Ala. 25
• Parties: BIERLEY v. SHELBY IRON CO.
• Court: Alabama Supreme Court

93 So. 829

208 Ala. 25

BIERLEY v. SHELBY IRON CO.

7 Div. 232.

Supreme Court of Alabama

June 22, 1922

Appeal from Circuit Court, Shelby County; A. B. Foster, Judge.

Action for damages by H. F. Bierley against the Shelby Iron Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Riddle & Ellis and Longshore & Koenig, all of Columbiana, for appellant.

Leeper Haynes & Wallace, of Columbiana, for appellee.

GARDNER J.

Appellant (plaintiff in the court below) sustained injuries while at work for appellee on the top of its furnace stack, and brought this suit to recover damages therefor. This is the second appeal in this cause. Shelby Iron Co. v Bierly, 202 Ala. 422, 80 So. 806.

The cause was tried upon counts lettered from A to I, inclusive. Some of these counts rested for recovery upon the negligence of one Wilson, as superintendent of the defendant company and others upon the negligence of one Keeling in the exercise of superintendence. Counts H and I are wanton counts, resting for recovery upon the wanton, willful, or intentional conduct of Keeling and Wilson, respectively. Count A predicates liability upon the averment that the furnace stack was defective, and counts B and C upon the negligent failure of the defendant to furnish plaintiff a reasonably safe place to work, and the negligent failure of the defendant to maintain and keep the place of work reasonably safe. Numerous pleas were interposed, setting up contributory negligence, and pleas 6 and 7 the defense of assumption of risk. Demurrers to the pleas of contributory negligence were sustained as answers to the wanton counts, and also sustained as to pleas 6 and 7, in so far as they attempted to answer the counts of the complaint other than counts B and C. The cause was tried upon the issues thus presented, resulting in a judgment and verdict for the defendant, from which plaintiff has prosecuted this appeal.

It is first insisted that the court committed error in overruling the demurrer to the pleas of contributory negligence to the complaint other than the wanton counts. As we understand these pleas they substantially conform to those presented for consideration on the former appeal in this cause, and we think that ruling suffices as an answer to the contention now made.

Plaintiff was what is known as "top filler," and his place of work was upon a platform at or near the top of the furnace stack, which was about 60 feet in height. It was his duty to place what is known as the "stock" into the furnace, where it is melted. This stock frequently becomes clogged in the furnace, and when it slips down, if the air is not cut off, and the gas does not sufficiently escape through the "explosive doors" and "down comer," an explosion will be produced. The plaintiff's theory is that while he was upon this platform an explosion occurred, and he was enveloped in flames, being burned and receiving other injuries as the result; that the furnace stack was defective, and that the superintendent was also guilty of negligence. The particular defects for the purposes of this appeal need not be detained.

The theory of the pleas of contributory negligence was that the plaintiff was at a safe place, and had he remained there he would not have been injured; but he left his place of work, where he was safe, running down the stairway, and received the injuries as the result of his negligence. Upon this question of fact the evidence was in sharp conflict; the plaintiff insisting his injuries were received while upon the platform at the top of the furnace.

Plea 6 was held good, as setting up the defense of assumption of risk as to counts B and C. It is well understood that the employé is deemed to have assumed all risks naturally and reasonably incident to his employment; that is, he assumes the ordinary risk of the employment. Labatt on Master and Servant, vol. 1, § 259 et seq. He does not, however, assume a risk created by the employer's negligence (A. G. S. v. Brooks, 135 Ala. 401, 33 So. 181; Standard Steel Co. v. Clifton, 194 Ala. 300, 69 So. 937); and the danger must have been obvious to or understood by the employé (Southern Ry. v. Howell, 135 Ala. 639, 34 So. 6; 5 Mayf. Digest 639).

We are of the opinion that plea 6...