Continental Gin Co. v. Milbrat

• Decision Date: 23 April 1914
• Docket Number: 233
• Citation: 65 So. 424,10 Ala.App. 351
• Parties: CONTINENTAL GIN CO. v. MILBRAT.
• Court: Alabama Court of Appeals

65 So. 424

10 Ala.App. 351

CONTINENTAL GIN CO. v. MILBRAT.

No. 233

Court of Appeals of Alabama

April 23, 1914

Rehearing Denied May 14, 1914

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by Julius Milbrat against the Continental Gin Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The pleadings and evidence sufficiently appear from the opinion of the court. The following charges were refused to defendant:

(3) Affirmative charge as to the fifth count.

(7) If you believe from the evidence that plaintiff got his hand hurt as a proximate consequence of his failure to use the guard on the joiner, and that such failure to use the guard was negligence on his part, then your verdict must be for defendant.

(2) I charge, you, gentlemen, that, if you believe the evidence in this case, you cannot find a verdict for plaintiff on that count of the complaint based on a defect in the floor on which the joiner, which plaintiff was operating at the time he got hurt, was placed.

J.T Stokeley of Birmingham, for appellant.

Harsh Beddow & Fitts, of Birmingham, for appellee.

WALKER P.J.

This was an action to recover damages for personal injuries alleged to have been sustained by the plaintiff (the appellee here) while acting as an employé of the defendant and engaged in work at a machine called a joiner. In different counts the injuries were attributed to respectively, the slippery condition of the floor at the place where the plaintiff had to stand in using the joiner to the fact that the joiner had no guard between the knife or saws on it and the point where the plaintiff was working--each of these alleged causes of the injuries being alleged to be a defect in the ways, works, machinery, or plant of the defendant, which arose from or had not been discovered or remedied owing to the negligence of the defendant or of some person in its employment who was intrusted by it with the duty of seeing that its ways, works, machinery, or plant were in proper condition; to the fact that the floor at the place the plaintiff was required to be or stand while engaged in the operation of said machine was defective and unsafe as a place for the plaintiff to be or stand while engaged in work at said machine; and to the negligence of one, Rump, a person in the service or employment of the defendant, who had superintendence intrusted to him, whilst in the exercise of such superintendence, in that he negligently caused or allowed plaintiff's hand or fingers to be caught in said machine. The case was tried on issues joined on the plea of not guilty and two special pleas of contributory negligence.

An exception was reserved to the following statement made in the oral charge of the court in reference to the defense of contributory negligence:

"And I charge you, as the law applying to that question, a servant must do that which is dangerous in a negligent manner in order to constitute contributory negligence on his part."

The ruling embodied in this statement must be considered in the light of the pleadings and evidence in the case and in connection with what was said by the court on the same subject in other parts of its charge. In the next succeeding sentence the court, speaking of the defense of contributory negligence, said:

"It would

be your duty under the evidence to come to the conclusion that this work was done, although he knew it was dangerous, in a negligent manner by the plaintiff before the plea of contributory negligence would be available to the defendant."

The practical import of these statements, considered together, as they should be, was that, even if the work the plaintiff was engaged in at the time he was hurt was dangerous, and was known to him to be dangerous, the pleas of contributory negligence could not be sustained, unless the jury found from the evidence that he did that work in a negligent manner. As applicable to the pleadings and evidence in the case, the instruction to this effect was not erroneous. There were two pleas of contributory negligence; one of them setting up the negligent failure of the plaintiff to use the guard provided for said joining machine; the other that, while the plaintiff was planing or edging a piece of timber in said joining machine he negligently allowed his hand to slip off of said piece of timber and come in contact with the knife of said machine, whereby his hand was caught and injured. It is to be observed that what was set up in each of these pleas was the alleged negligent manner of the plaintiff's use of the machine at the time he was hurt. Neither of these pleas properly could be sustained, unless the jury found from the evidence that the plaintiff was negligent in the manner of doing that in which he was engaged when the injury complained of was sustained. This is equally true whether the work was dangerous or not, and whether the plaintiff did or did not know of the danger. As nothing was set up as contributory negligence, except the negligent manner in which the plaintiff made use of the machine by which he was hurt, the appellant has nothing to complain of in a charge to the effect that the defense of contributory negligence could not be sustained unless the jury found from the evidence that the plaintiff did that work, whether it was dangerous or not, in a negligent manner. Whether the proposition excepted to, as stated by the court in general terms, is or is not correct in all cases to which it might be applied, it was not incorrect when applied to the pleadings and evidence in this particular case. The statement being a correct one...