Brammer v. Pettyjohn

• Decision Date: 19 December 1907
• Citation: 45 So. 646,154 Ala. 616
• Parties: BRAMMER v. PETTYJOHN ET AL.
• Court: Alabama Supreme Court

45 So. 646

154 Ala. 616

BRAMMER v. PETTYJOHN ET AL.

Supreme Court of Alabama

December 19, 1907

Rehearing Denied Feb. 6, 1908.

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by F. E. Brammer, by next friend, against L. G. Pettyjohn and others. From a judgment for defendants, plaintiff appeals. Affirmed.

B. M Allen, for appellant.

Kerr &amp Haley, and Frank S. White & Sons, for appellees.

McCLELLAN J.

The appellant, a boy 16 years of age, was injured as the result of the contact of his hand with the saws of a running gin. The record does not disclose that he was less intelligent than the average youth of that age. Worthington v Goforth, 124 Ala. 656, 26 So. 531; King v. Woodstock Co., 143 Ala. 632, 42 So. 27. By his own testimony it appears that the danger of injury to one inserting his hand beneath the ribs and above the running saws of the gin was known to him; the apron of the gin being raised so as to expose the dangerous situation. He also testified that "he saw these saws and the way they turned, and saw how sharp they were and how the ribs came over the saws" and, having previously testified that he stopped the gin twice in order to unchoke it, in answer to the question, "You saw all that, and you stopped the gin twice to keep from getting hurt, didn't you?" he replied in the affirmative. He also testified that it was dangerous to try to clean that gin without stopping it.

It is manifest from this that the safety of plaintiff required of his master no instruction or information with reference to the danger attending an effort to unchoke the gin by inserting his hand between the ribs and the revolving saws. Besides this, the hazard of such a performance was so obvious as not to raise any duty on the part of the employer to instruct or warn him with reference to it. The condition itself and the knowledge he had of it both rendered entirely unnecessary any action on the part of the employer to conserve plaintiff's safety. Worthington v. Goforth supra; L. & N. R. R. Co. v. Boland, 96 Ala. 626, 11 So. 667, 18 L. R. A. 260; North Ala. R. R. Co. v. Beacham, 140 Ala. 422, 37 So. 227; Moss v. Mosley (Ala.) 41 So. 1012. It results that the affirmative charge was properly given for the defendant, since the injury must be attributed to the plaintiff's rashness, and to no breach of duty on the part of the defendant. Errors, if intervening otherwise, were without prejudice to app...