Decatur Car Wheel & Mfg. Co. v. Terry

• Decision Date: 06 July 1906
• Citation: 148 Ala. 674,41 So. 839
• Parties: DECATUR CAR WHEEL & MFG. CO. v. TERRY.
• Court: Alabama Supreme Court

41 So. 839

148 Ala. 674

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

Supreme Court of Alabama

July 6, 1906

On Rehearing.

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"Not officially reported."

Action by John Terry, by his next friend, against the Decatur Car Wheel & Manufacturing Company. From a judgment for plaintiff defendant appeals. Affirmed.

Weatherly & Stokely, for appellant.

Denson & Denson, for appellee.

SIMPSON J.

This is an action by the appellee (plaintiff) against the appellant (defendant) for damages on account of an injury claimed to have been received by the plaintiff while in the service of the defendant.

The first assignment of error insisted upon by the appellant is that the general affirmative charge should have been given as to the fifth count. The evidence shows that the plaintiff was a youth nearly 16 years old; that he had been working about rolling mills for about two years, and had been working at rolling these wheels for five days. There is no proof of anything especially dangerous about the situation, except the fact that the back wheels were slightly inclined to the front and the other wheels were leaned against them, which if a defect at all, was obvious to any one, but especially so to the plaintiff, who was in a position to see them better than any one else. He explains how the wheels were standing and he simply withdrew the supporting wheels from those which were resting against them. "A minor, upon entering contractually upon a given service, assumes the risks thereof as fully as does the adult; and the mere fact of minority does not necessarily impose upon the master any other or greater degree of care in respect to the minor than would be upon him had the servant attained full age. It is immaturity of mental and physical faculties and capacities which is incident to some minors, but not all, but not the mere fact of minority, which the master must have special regard for." Alabama Mineral R. R. Co. v. Marcus, 115 Ala. 389, 395, 22 So. 135. This count (the fifth) is based on the common-law liability, and the evidence does not show any such liability on the part of the defendant as could justify a recovery. Consequently the defendant was entitled to the benefit of the general charge asked as to this count. Clements v. A. G. S. R. R. Co., 127 Ala. 166, 28 So. 643; Dresser on Employer's Liability, pp. 422, 438, 459, 465, 466.

The only...