Birmingham Stove & Range Co. v. Lawler

• Decision Date: 10 November 1914
• Docket Number: 652
• Citation: 11 Ala.App. 534,66 So. 897
• Court: Alabama Court of Appeals
• Parties: BIRMINGHAM STOVE & RANGE CO. v. LAWLER.

66 So. 897

11 Ala.App. 534

BIRMINGHAM STOVE & RANGE CO. v. LAWLER.

No. 652

Court of Appeals of Alabama

November 10, 1914

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by Robert Lawler against the Birmingham Stove & Range Company for damages for injuries suffered while in its employment. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Count 1 is as follows:

"Plaintiff claims of defendant _____ the sum of _____ damages, for that heretofore on, to wit, _____, defendant was engaged in the manufacture of stoves at or near _____, and on said day plaintiff was in the service or employment of said defendant, and, while engaged in the discharge of his duties as such under his said employment, a flask containing molten iron did break or give way or leak, thereby causing said iron to run against plaintiff's foot. [[[Here follows catalogue of injuries.] Plaintiff avers that its said injuries were proximately caused by reason of the defect in the condition, etc. [[[following the statute], which had not been discovered or remedied owing to the negligence of defendant or some person in its service or employment, and trusted by it with the duty of seeing that its ways, works machinery, etc., were in proper condition in this, that said flask was defective."

Count 2:

Same as 1 down to the words "in this" where they last occur therein, and adds: "In that it was old and worn and leaky and weak."

Count 3:

Same as the first down to the averment of proximate cause and adds: "Plaintiff avers that his said injuries were proximately caused by reason of the negligence of defendant in this, that it negligently failed to furnish plaintiff with a reasonably safe appliance with which to work in this, that said flask which was being used by plaintiff in his said work was old, worn, weak, and leaky, thereby causing said iron to run against plaintiff and injure him."

Count 4:

Same as 1, with the allegations that plaintiff's said injuries were proximately caused by reason of the negligence of some person in the service or employment of defendant, one Stockman, who had superintendence intrusted to him whilst in the exercise of such superintendence in this, that he negligently caused plaintiff to receive his said injuries.

Plea 2 sets up:

That prior to the injury plaintiff himself had been intrusted by defendant and had assumed the duty of seeing that the said flask mentioned in plaintiff's complaint was in proper condition; wherefore defendant avers that plaintiff assumed the risk of injury from the use of the flask by plaintiff.

Plea 3 sets up:

That said flask as originally installed by defendant for use in its foundry was in all respects suitable and proper for the purposes for which it was used at the time of the injuries complained of, and at all times prior thereto; the said flask was in two separate parts, and at the time of said alleged injuries the flask and every part thereof was in suitable condition for use by plaintiff; that before using the flask it was the duty of plaintiff himself to see that the parts were securely fastened together before pouring or causing to be poured molten iron in said place; and defendant avers that the said flask was not securely fastened together at the time of the accident and molten iron ran through one of the joints of said flask and injured plaintiff, owing to the fault or negligence of plaintiff himself, who at the time of the alleged injury had been intrusted by defendant with and had assumed, the duty of seeing that said flask was in proper condition before pouring or causing to be poured molten metal into said flask; wherefore defendant avers that plaintiff assumed the risk of injury for the use of the flask by plaintiff.

Plea 4 sets up:

That plaintiff had been intrusted by defendant and had assumed the duties of inspecting before use the flask referred to; that plaintiff was an experienced molder, at the time of the accident had been employed by defendant as a molder for the space of about one year, and was thoroughly conversant with the use of the flask such as the flask mentioned in the complaint, and then states the facts and conclusions as set out in the plea.

Plea 5 sets up:

That plaintiff himself had during the space of one year prior to the time of the alleged injury repeatedly used the flask mentioned in the complaint, and was himself using the same under and in the line and scope of his employment at the time of the alleged injury, and the condition of said flask was well known to plaintiff at and before the time of said accident, but plaintiff failed and neglected at any time prior to the time of said accident to make any complaint or give any information to defendant, or to some person superior to himself engaged in the employment or service of defendant regarding the alleged defect in said flask; wherefore defendant avers that plaintiff assumed the risk of injury from the use of the flask by plaintiff.

The special replication is as follows:

"Answering further the second, third, fourth, and fifth pleas, say that the defendant or some person in the service or employment of the defendant and superior to the plaintiff already knew of the defective condition of such flask."

Forney Johnston, W.R.C. Cocke, and C.C. Nesmith, all of Birmingham, for appellant.

Bondurant & Smith, of Birmingham, for appellee.

CRUM J.

The first and second counts of the complaint were framed under subdivision 1, and the fourth count under subdivision 2, of the Employers' Liability Act (Code, § 3910); while the third count asserts a breach of duty under the common law with respect to the furnishing of instrumentalities used in the business of the master about which the servant was engaged.

In the first count it is alleged that the defendant was engaged in manufacturing stoves, and that, while plaintiff was in the performance of his duties in connection therewith, a molding flask containing molten iron broke, gave way, or leaked, thereby causing the iron to run against and injure him, "which injuries were proximately caused by reason of a defect in the condition of the ways, works, machinery, or plant connected with, or used in, the business of the defendant, which arose from or had not been discovered or remedied owing to the negligence of the defendant or some person in its service or employment intrusted by it with the duty of seeing that its ways, works, machinery, or plant were in proper condition, in this, that said flask was defective."

The second count is simply an adoption in toto of the first, with the additional averment that the flask was defective "in that it was old, and worn, and leaky, and weak."

It was insisted by demurrer that counts 1 and 2 were defective: (1) In failing to aver that the breaking or leaking of the flask was the proximate cause of the injury; and (2) that the averment of the defect was too general, and no causal connection between the defect and the injury was shown.

It appears sufficiently clear from the averment that the molten iron escaped and came in contact with the plaintiff in consequence and as the proximate result of the alleged defective condition of the flask in use as a part of the ways, works, machinery, or plant of the defendant about which the plaintiff was at work. These counts are readily distinguishable from the one condemned in the case of ...