Decatur Car Wheel & Mfg. Co. v. Mehaffey

• Decision Date: 23 January 1901
• Citation: 29 So. 646,128 Ala. 242
• Court: Alabama Supreme Court
• Parties: DECATUR CAR WHEEL & MFG. CO. v. MEHAFFEY.

29 So. 646

128 Ala. 242

DECATUR CAR WHEEL & MFG. CO. v. MEHAFFEY.

Supreme Court of Alabama

January 23, 1901

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by Elmira Mehaffey against the Decatur Car Wheel &amp Manufacturing Company. Judgment for plaintiff, and defendant appeals. Reversed.

The complaint, as amended, contained 22 counts. All of these counts, except the second and fourth, were eliminated from the consideration on this appeal by reason of the rulings of the court below. The plaintiff's intestate was, at the time he received the personal injuries which resulted in his death, in the employment of the defendant, and under the direction of one Stevens, who was the superintendent of the defendant, and was assisting in raising an iron rail to a hanging scaffold upon which plaintiff's intestate was standing. The details in reference to the services in which he was engaged at the time of his accident are sufficiently stated in the opinion. After averring these details as preliminary allegations, the second and fourth counts of the complaint alleged the negligence complained of as follows "Plaintiff avers that said accident and said injuries to intestate were caused by the negligence of one Stevens, whose Christian name is to the plaintiff unknown, and who was in the employment or service of the defendant at the time, and who was intrusted by the defendant with superintendence over the said improvements or repairs being made on said plant and who also had superintendence over the hands who were assisting and the implements being used in making said improvements or repairs, and who was at the time in the exercise of such superintendence, in this: That said Stevens well knowing that said scaffold was not sufficiently braced but that the same was unsteady, and liable to swing or oscillate to and fro when struck or pressed against, and well knowing that plaintiff's intestate was on said scaffold in a squatting position, or on his hands and knees, and well knowing that said intestate was trying to receive or place said piece or bar of iron by extending a stick or piece of lumber from off of said scaffold out to and under said piece of bar iron, and knowing that to give slack to the rope to which said bar of iron was attached would probably cause said bar of iron to strike upon or against said scaffold, and cause the same to swing or oscillate, negligently ordered the persons in charge of the pulley by which said bar of iron was being hoisted to give slack to the rope to which said bar of iron was attached, which they did, and because thereof said bar of iron was thrown or struck against said scaffold causing the same to swing or oscillate, and by reason thereof caused plaintiff's intestate to fall from off said scaffold to the ground, inflicting the injuries aforesaid, wherefore plaintiff sues." (4) "Plaintiff avers that said accident and said injuries to said intestate were caused by the negligence of one Stevens, whose Christian name is to the plaintiff unknown, who was also in the service or employment of the defendant, and who had intrusted to him by the defendant superintendence over the making of said improvements or repairs, and over the hands who were assisting in doing the work in making said improvements or repairs, and over the implements and appliances used in and about the making of said improvements or repairs, and who was at the time in the exercise of such superintendence so intrusted to him, and who, knowing that plaintiff's intestate was on said scaffold either in a squatting position or on his hands and knees, and was there for the purpose of receiving a piece of bar iron which was being hoisted by means of said pulley, and knowing that said piece of bar iron had been hoisted to a point about even or level with said scaffold, and knowing that plaintiff's intestate was trying to move said piece of timber out to and underneath said piece of bar iron, and without waiting until some other person had gotten on said scaffold to assist plaintiff's intestate in receiving said piece of bar iron, and knowing that said scaffold was liable to swing to and fro when struck or pressed by said piece of bar iron, negligently ordered the persons in charge of the pulley who were hoisting the said piece of bar iron, when said piece of bar iron had reached a point about level or even with the floor of said scaffold, to give slack to the rope which was attached to said piece of bar iron, and by means of which it was being raised, well knowing that the slackening of said rope would cause said piece of bar iron to strike or press against said scaffold, and cause it to swing or move, and thereby have a tendency to throw plaintiff's intestate off of said scaffold; that said persons so in charge of said rope, in obedience to said order, did slacken the same, and thereby caused said piece of bar iron to strike against the scaffold, or against the stick which plaintiff's intestate had placed under the same, with such force as to cause plaintiff's intestate to fall off of said scaffold, which he did; the said Stevens well knowing at the time that it was dangerous to the plaintiff's intestate to cause said rope to be slacked and said iron descend as aforesaid without some other person being on the scaffold to assist said intestate in receiving said bar iron." To the second count of the complaint the defendant demurred upon the following grounds: "(1) For that it appears that the intestate, with knowledge of his surroundings and the dangers incident to his employment, voluntarily undertook the risk incident to raising and lowering said bars of iron; that being the work they were then engaged in. (2) For that it appears that the intestate placed himself in an extra-hazardous position of danger when there was a safer way to perform the service. (3) For that it appears that the negligence complained of was not the proximate cause of said intestate's injury." To the fourth count of the complaint the defendant demurred upon the following grounds: "(1) For that it appears from this count that the injury complained of was occasioned by the act of fellow servants, in this: that the persons in charge of the pulley let the iron fall with more force than was necessary. (2) For that it appears that the said intestate assumed the risks incident to receiving said bars of iron on the scaffold, and he must have known that it was necessary for the bars of iron to strike the scaffold with more or less force when they were received or placed on the scaffold; and it is alleged that that was the duty he was performing. (3) For that under the allegations of this count it appears that the injury was occasioned, not by reason of the failure to have assistance on the scaffold, but because of the force with which the iron descended on the scaffold; and it is not made to appear how it would have been less dangerous if some other person or persons had been on the scaffold. (4) For that plaintiff counts upon the failure of the superintendent to have some other person on the scaffold with said intestate, but fails to show what connection that fact had with the alleged injury. (5) For that the negligence complained of is the order of said Stevens that slack be given to the rope, and it appears from the allegations of the count that any risk or danger attending the striking of the iron upon the scaffold was assumed by said intestate in undertaking said employment." These demurrers were overruled, and the defendant separately excepted to the overruling of each of them. The defendant pleaded the general issue and several special pleas, in which he set up contributory negligence on the part of the plaintiff's intestate, and the fact that the plaintiff's intestate assumed the risk incident to the services which he was performing at the time of the accident. During the examination of some of the witnesses for the plaintiff, and after they had, in their testimony, shown themselves familiar with the work with which the plaintiff's intestate was engaged at the time of the injury, and with the surroundings of the place, they were asked to state what, in their opinion, was the effect of an iron rail striking the scaffold, and whether or not the effect would be to throw the plaintiff's intestate from the scaffold, and whether or not the iron rail was being raised in the safest and most prudent way. To each of such questions the...