Clover Creamery Co. v. Diehl

• Decision Date: 01 May 1913
• Citation: 63 So. 196,183 Ala. 429
• Parties: CLOVER CREAMERY CO. v. DIEHL.
• Court: Alabama Supreme Court

63 So. 196

183 Ala. 429

CLOVER CREAMERY CO. v. DIEHL.

Supreme Court of Alabama

May 1, 1913

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Grace Diehl, a minor, by her next friend against the Clover Creamery Company for personal injuries. Judgment for the plaintiff in the sum of $3,500, and defendant appeals. Affirmed.

The amended count 2 is as follows: "Plaintiff who is a minor three years old, and who sues by her next friend and father J.M. Diehl, claims of defendant, which is a corporation $10,000 as damages, for that heretofore, to wit, on the 14th day of April, 1911, the plaintiff was injured through the negligence of defendant in the manner following: The defendant had, at and before the time just stated, on its premises near Mertz Station in Mobile county, Ala., machinery that was attractive to children of plaintiff"s age, and was exceedingly dangerous when left unguarded by fence, or in some other way, the machinery being what is known as the gear or cogs operated by a belt connected with the gasoline engine for the purpose of operating a pump for the purpose of pumping the water for defendant's use on said premises and the plaintiff avers that the defendant then and there negligently permitted said machinery and the said cog to be and remain open and unprotected or unguarded by an inclosure of some character, or in some other manner, although the defendant well knew that plaintiff, who was then and there below the age of discretion, and was then and there residing upon said premises with the permission of defendant, was constantly playing about said premises in close proximity to said machinery; that the said machinery was of such a character that the operation thereof was liable to attract a child of plaintiff's age, the cogs being left in an exposed condition, where the movements thereof could be seen and that plaintiff was liable to receive serious injuries at some time while said machinery was being operated. And plaintiff avers that, as the proximate result of the said negligence of defendant, the plaintiff, while playing on said premises at or near the said machinery was attracted by said machinery, and while standing near said machinery where said cogs were unguarded and uncovered as aforesaid, her dress was caught by said cogs, and her left arm was caught in said cogs being then and there operated, and her left hand was by said cogs seized, and her said hand and arm so crushed and mangled as to necessitate the amputation of said arm a short distance below the elbow thereof. And plaintiff avers that at the same time and in the same manner her said left arm, at or about the shoulder thereof, was terribly mangled and cut, and plaintiff avers that the said injuries caused her great suffering and were of a permanent character, all to her damage in the sum aforesaid."

The demurrers were that the complaint...