Davis v. Kornman

• Citation: 141 Ala. 479,37 So. 789
• Parties: DAVIS v. KORNMAN.
• Decision Date: 02 December 1904
• Court: Alabama Supreme Court

37 So. 789

141 Ala. 479

DAVIS v. KORNMAN.

Supreme Court of Alabama

December 2, 1904

Appeal from Circuit Court, Mobile County; William S. Anderson Judge.

Action by Matt L. Davis against William Kornman. From a judgment for plaintiff, defendant appeals. Reversed.

The case was tried upon a single count, numbered 2, which avers "That on the 14th day of June, 1902, the defendant was engaged in operating a planer mill in manufacturing lumber in Mobile county, Ala., and employed a foreman and hands to operate said planer, and plaintiff was employed as a hand under said foreman, whose name was D. B. Taylor, and who was intrusted at said time by defendant with superintendence of the operation of said planer and of the plaintiff and other hands, and the said plaintiff at said time was a servant or employé in the service or business of the said defendant in connection with the operation of said planer mill, and engaged in the discharge of his duties as such servant or employé; and plaintiff avers that on, to wit, the date and time aforesaid, and while in the service of the defendant and in the discharge of his duties as aforesaid in said county, the plaintiff was injured by the belt studs breaking out of the belt used in running or operating said planer and striking the plaintiff in the face, side and shoulder whereby plaintiff was badly cut and suffered great pain and was permanently injured and his arm partially paralyzed, and whereby he was put to great expense for medical attention and medicines in and about his said injuries, and sustained great loss of time, and was permanently rendered less able to earn a livelihood, and the plaintiff avers that the said injuries were caused by reason of the negligence of said foreman (Taylor) whilst in the exercise of such superintendence as aforesaid."

The evidence on which the case was tried and the facts relating to the rulings of the trial court on the evidence reviewed on the present appeal, are sufficiently set out in the opinion.

On page 66 of the transcript (and marked No. 2 by the court) is the following extract from the general charge of the trial judge: "If the man in the operation of the machinery finds out, although it may be used by others in the same line of business, that it is dangerous, why it would be his duty to take such means as he could to protect his employés against such danger."

On page 64 of the transcript (and marked No. 1 by the court) is the following extract from the general charge of the trial judge: "The question though, as to whether he is entitled to recover or not depends upon whether the evidence reasonably satisfies your minds that that injury was the proximate result of the negligence of the superintendent, D. B. Taylor, while he was in the performance of his duties as such superintendent, while he was in the discharge of his duties."

The court at the request of the plaintiff gave the following written charges, to the giving of each of which the defendant separately excepted: "(2) If the jury believe the undisputed evidence, and also that at the time the plaintiff was injured, he was in the discharge of his duties as employé of the defendant, and that defendant, through his foreman, Mr. D. B. Taylor, negligently failed to use due care and reasonable diligence to provide the planer machine with a good, proper and suitable belt with which to operate said machine, and that he negligently provided a belt with which to operate said machine, which he knew or ought to have known, was unsafe and unsuitable for the purpose for which it was furnished, and that the belt was unsafe and dangerous by reason of being fastened together with metal studs, and which studs would break or tear out of said belt on account of the weakness of the fastening, and that the belt hooks broke out of the belt and struck plaintiff, and that plaintiff's injuries resulted from such negligence, then you must find a verdict for the plaintiff and assess his damages. (3) If the jury believe the undisputed evidence in this case and that when plaintiff was injured he was in the discharge of his duties as employé of the defendant and at the time the belt (which broke and caused the injury to plaintiff) was fastened together and put upon the machine, Mr. D. B. Taylor was intrusted with superintendence in this regard, and that the belt was fastened together and put on the machine while said Taylor was in the exercise of such superintendence, and that said Taylor was negligent either in not fastening the belt together by lacing, or with covy hooks, or in not putting up a guard to protect the plaintiff from danger of being struck, or in not instructing the plaintiff of the dangers connected with the use of the belt, and you further believe that the hooks broke out of the belt and struck plaintiff, then under the employer's liability act of this state, the plaintiff would then be entitled to a verdict at your hands under the second count of the complaint. (7) If you believe from the evidence in this case, that Mr. D. B. Taylor, at the time the belt was fastened together with Blake studs and put on the planer machine, was intrusted with superintendence in that regard and was in the exercise of such superintendence, and that he knew at said time that the said belt could have been fastened together by lacing, and that when laced it was not dangerous when in use on said machine, and that it had previously proved to be dangerous on said machine when fastened together with studs, then said Taylor was guilty of a negligent act, for the legal consequences of which the law fastens liability upon the defendant." "(10) If the fastening of the belt together with Blake studs was an unnecessary and unreasonably dangerous and unsafe way of fastening said belt together, and that the belt could have been safely used on the machine had it been laced, or fastened in some other way neither the additional time that would be spent (if such be a fact) in fastening the belt together by lacing, or some other safe way, nor the fact (if it be so) that a belt laced or otherwise fastened would not be as durable, will excuse the selection of such dangerous and unsafe fastenings instead of lacing or fastening in some other safe way." "(13) If you believe from the evidence that a Blake stud when used as a fastener in a belt, without protection, as was the belt in this case, was not reasonably safe, as a means of such fastening, then it would be no excuse that other mills did the same thing."

The defendant requested the following written charges, which the court separately refused, and to which refusal he separately excepted:

"(g) The court charges the jury that the plaintiff relies for recovery upon only the second count of the complaint. This count complains of negligence on the part of defendant's superintendent, and no recovery can be had thereunder on account of any defect that may have existed in the machinery or appliances whether it consisted of the character of the studs used or a want of a protector or any other defect in the appliances. (h) An employer is not obliged to use the best possible appliances nor every possible device, to protect his employés from danger; if he uses appliances that are used, and deemed good and sufficient, by many prudent persons engaged in the same kind of business, and uses them in the same manner in which they are used under the same or similar circumstances by many prudent persons, and an accident nevertheless occurs and an employé is injured, the employer is not liable to the employé for such injuries."

The rulings on the evidence and the charges given and refused are now assigned as error.

Gregory L. & H. T. Smith, for appellant.

Charles L. Bromberg, Jr., for appellee.

HARALSON J.

The plaintiff, William Kornman, brought suit against the defendant, Matt L. Davis, to recover damages for a personal injury received by him while in the employment of defendant. Before the submission of the cause to the jury he requested that it be submitted to be tried alone on the second count in the complaint, abandoning all the other counts which was done. The second count and issue joined thereon, constitute the pleadings. The count alleged in substance, that on the 14th of June, 1902, the defendant was operating a planer mill in manufacturing lumber, and plaintiff and others were employed as hands to operate said mill, under one D. B. Taylor, who was engaged as foreman, intrusted by defendant with superintendence of the operation of said planer and of the plaintiff and other hands; that the plaintiff was injured by certain belt studs which broke out of the belt used in running and operating the planer, and struck the plaintiff inflicting on him physical injuries, caused by reason of the negligence of said foreman while in the exercise of such superintendence.

It was shown, without conflict in evidence, that plaintiff was employed at the time in the defendant's mill as an assistant to the feeder at a planing machine, the belt of which revolved very rapidly over two pulleys about five feet apart, and on the day of the accident, the feedway of the machine became choked, and the feeder stepped one side for the purpose of...