Dwight Mfg. Co. v. Vaughn, 7 Div. 7

CourtSupreme Court of Alabama
Writing for the CourtGARDNER, J.
Citation83 So. 327,203 Ala. 462
Docket Number7 Div. 7
Decision Date13 November 1919
PartiesDWIGHT MFG. CO. v. VAUGHN.

83 So. 327

203 Ala. 462

DWIGHT MFG. CO.
v.
VAUGHN.

7 Div. 7

Supreme Court of Alabama

November 13, 1919


Appeal from Circuit Court, Etawah County; O.A. Steele, Judge.

Action by J.A. Vaughn against the Dwight Manufacturing Company and another for damages sustained while in the employ of the defendants. Judgment for the plaintiff, and defendant Dwight Manufacturing Company appeals. Reversed and remanded.

The facts sufficiently appear from the opinion.

Dortch, Martin & Allen and O.R. Hood, all of Gadsden, for appellant.

P.E. Culli, of Gadsden, for appellee.

GARDNER, J.

Appellee brought this suit against the Dwight Manufacturing Company and one W.T. Christopher for the recovery of damages sustained while at work on a building being erected for the Dwight Manufacturing Company in Alabama City. There was judgment in favor of the plaintiff against the Dwight Manufacturing Company, from which said company prosecutes this appeal.

The cause was submitted to the jury on counts 1, 3, and 5, the general issue, and pleas of contributory negligence.

The plaintiff was one of the workmen assisting in hoisting lumber from a platform, which was a few feet from the ground floor of the building, to the roof of the building, which was 40 or 50 feet high. The platform was 4 or 5 feet above the ground, and even with the bottom floor, just outside of the building. The lumber was loaded on the platform from a railroad car standing near by. The appliance used for hoisting the lumber to the roof was a simple rope and tackle apparatus, consisting of a pole or brace extending over the wall of the building at its top, with a single block above and a single block below, and a rope running through both blocks. The lumber to be hoisted was fastened to the sling rope by means of a slip knot, or running noose, that tightened as the hoisted lumber made its ascent to the roof of the building. At the time of his injury, plaintiff lifted one end of the piece of lumber so that his fellow workman, Merritt, could get the rope underneath. This piece of lumber was 3 or 4 inches thick, 8 inches wide, and some 16 or 18 feet long. Plaintiff steadied the end of same as long as he could reach it as it was being hoisted, and then stepped to one side. The piece of lumber was fastened a little off the center so that it would go up in a perpendicular manner. When it reached near the top of the building, it slipped from the rope, falling upon the lumber piled upon the platform, and struck a piece of lumber which flew up and struck the plaintiff, causing very serious injuries.

Count 1 relied for recovery upon a breach by the master of the common-law duty to provide a safe appliance, and counts 3 and 5 rested for recovery upon the negligence of one Kershaw, who was alleged to have had superintendence intrusted to him, and while in the exercise of such superintendence negligently permitted or allowed the lumber to be placed at the point where plaintiff was engaged in hoisting the same so that in the event one of said pieces of lumber fell it would strike the pile of lumber and cause pieces of the lumber to fly up and likely injure the plaintiff. Each of the counts alleged that the plaintiff was in the employ of the defendants, Dwight Manufacturing Company and W.T. Christopher.

It is most earnestly insisted in argument of counsel for appellant that the evidence was insufficient for submission to the jury, that any relationship of master and servant existed [83 So. 328] as between the Dwight Manufacturing Company and the plaintiff, and that therefore error was committed in refusing the general affirmative charge in its favor. This presents the first question for consideration.

The building which was in course of construction was being erected for the Dwight Manufacturing Company upon its property in Alabama City and within the fence surrounding such property. The said company entered into a written contract with W.T. Christopher for the erection of said building for a specified sum; the date for its completion being fixed at September 1, 1917. The contract is quite lengthy and is set out in full in the record. We think it clearly appears that under its terms W.T. Christopher was an independent contractor. Ordinarily, of course, under the general rule prevailing in this state, appellant would not be liable for the negligent acts of said independent contractor. Bains v. Dank, 74 So. 341; Scoggins v. A. & G.P. Cement Co., 179 Ala. 213, 60 So. 175. The plaintiff was injured on November 27th while working at night on said building; and, as previously stated, the time for the completion of the work was September 1st, previous thereto.

It appears to be conceded by the parties that, under the terms of said contract, in the event of certain defaults on the part of the contractor in the erection of said building, the Dwight Manufacturing Company had the right to intervene and assist in its erection to further promote the progress of the work. The theory of the plaintiff is that there was such default, and that the Dwight Manufacturing Company had seen fit to assist the contractor in the further progress of the work, and offered testimony which it is insisted tends to support this view. We will very briefly state the summary of this evidence. The contract provided that the Dwight Manufacturing Company could under certain conditions furnish men and material to aid in the further progress of the work; that the tools with which the work was being done, and the rope from which the sling or noose was...

To continue reading

Request your trial
4 practice notes
  • Morgan Hill Paving Co. v. Fonville, 6 Div. 17
    • United States
    • Supreme Court of Alabama
    • December 6, 1928
    ...of water over that condition, causing the injury. Alabama Fuel & Iron Co. v. Vaughn, 203 Ala. 461, 83 So. 323; Dwight Mfg. Co. v. Vaughn, 203 Ala. 462, 83 So. 327; Clinton Min. Co. v. Loveless, 204 Ala. 77, 85 So. 289; B'ham News Co. v. Andrews, 204 Ala. 649, 87 So. 168; Montgomery L. & P. ......
  • Vaughn v. Dwight Mfg. Co., 7 Div. 212.
    • United States
    • Supreme Court of Alabama
    • October 27, 1921
    ...& Dortch, and O. R. Hood, all of Gadsden, for appellee. THOMAS, J. This suit was for personal injury. The first appeal is reported in 203 Ala. 462, 83 So. 327. The last trial was had on counts 3 and 5 of the original complaint, and counts 7 and 11 added on the second trial. The general affi......
  • Southern Ry. Co. v. Chestnutt, 6 Div. 896.
    • United States
    • Supreme Court of Alabama
    • November 8, 1923
    ...Labatt's Master and Servant, § 26; Coosa Pipe Foundry Co. v. Poindexter, 182 Ala. 656, 664, 62 So. 104; Dwight Mfg. Co. v. Vaughn, 203 Ala. 462, 83 So. 327. Does this rule apply to the case at bar, as matter of law? The pin which broke was part of an appliance to store the curtain while not......
  • Klein v. Mr. Transmission, Inc.
    • United States
    • Supreme Court of Alabama
    • August 21, 1975
    ...for the negligence of such independent contractors, absent certain exceptions which are not material here. Dwight Mfg. Co. v. Vaughn, 203 Ala. 462, 83 So. 327 (1919); Scoggins v. Atlantic & G. P. Cement Co., 179 Ala. 213, 60 So. 175 The judgment against Klein, is therefore, reversed and ren......
4 cases
  • Morgan Hill Paving Co. v. Fonville, 6 Div. 17
    • United States
    • Supreme Court of Alabama
    • December 6, 1928
    ...of water over that condition, causing the injury. Alabama Fuel & Iron Co. v. Vaughn, 203 Ala. 461, 83 So. 323; Dwight Mfg. Co. v. Vaughn, 203 Ala. 462, 83 So. 327; Clinton Min. Co. v. Loveless, 204 Ala. 77, 85 So. 289; B'ham News Co. v. Andrews, 204 Ala. 649, 87 So. 168; Montgomery L. & P. ......
  • Vaughn v. Dwight Mfg. Co., 7 Div. 212.
    • United States
    • Supreme Court of Alabama
    • October 27, 1921
    ...& Dortch, and O. R. Hood, all of Gadsden, for appellee. THOMAS, J. This suit was for personal injury. The first appeal is reported in 203 Ala. 462, 83 So. 327. The last trial was had on counts 3 and 5 of the original complaint, and counts 7 and 11 added on the second trial. The general affi......
  • Southern Ry. Co. v. Chestnutt, 6 Div. 896.
    • United States
    • Supreme Court of Alabama
    • November 8, 1923
    ...Labatt's Master and Servant, § 26; Coosa Pipe Foundry Co. v. Poindexter, 182 Ala. 656, 664, 62 So. 104; Dwight Mfg. Co. v. Vaughn, 203 Ala. 462, 83 So. 327. Does this rule apply to the case at bar, as matter of law? The pin which broke was part of an appliance to store the curtain while not......
  • Klein v. Mr. Transmission, Inc.
    • United States
    • Supreme Court of Alabama
    • August 21, 1975
    ...for the negligence of such independent contractors, absent certain exceptions which are not material here. Dwight Mfg. Co. v. Vaughn, 203 Ala. 462, 83 So. 327 (1919); Scoggins v. Atlantic & G. P. Cement Co., 179 Ala. 213, 60 So. 175 The judgment against Klein, is therefore, reversed and ren......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT