Ford v. Planters' Chemical & Oil Co.

• Decision Date: 16 January 1930
• Docket Number: 7 Div. 912.
• Citation: Ford v. Planters' Chemical & Oil Co., 220 Ala. 669, 126 So. 866 (Ala. 1930)
• Court: Alabama Supreme Court
• Parties: FORD v. PLANTERS' CHEMICAL & OIL CO.

126 So. 866

220 Ala. 669

FORD v. PLANTERS' CHEMICAL & OIL CO.

7 Div. 912.

Supreme Court of Alabama

January 16, 1930

Rehearing Denied April 3, 1930.

Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.

Action for damages by Richard Ford, a minor, suing by his next friend, Ruby Ford, against the Planters' Chemical & Oil Company. From adverse rulings on pleading, sustaining demurrer to the complaint, plaintiff takes a nonsuit and appeals.

Affirmed.

Counts 1 and A of the complaint are as follows:

"Count One. The plaintiff claims of the defendant the sum of Ten Thousand Dollars ($10,000.00), damages for that whereas on to-wit the 24th day of January, 1929 the defendant was operating an Oil Mill in Talladega, Alabama, between the Southern Railway and Broom Street of said City of Talladega, beginning at East Street between said Southern Railway and Broom Street and running East approximately two blocks to where said Broom Street crosses said Southern Railway, said defendant using all of property in connection with the operation of said Oil Mill for the manufacture of cotton seed products and in connection with said Oil Mill as a part of same the defendant operated a Spiral Conveyor made of steel or iron on said date and for a long time prior thereto, on the outside of the building located on said land and said conveyor was parallel to Broom Street and to-wit fifteen feet from said street and same was on said date and for a long time prior thereto unprotected uninclosed and unguarded and was exposed to and in plan view of children of all ages who were traveling over Broom Street or the side walk adjoining said street and was in plain view of and in close proximity to a public playground where the children of Talladega were accustomed to congregate and play and same was also located in a thickly populated residential section of the City of Talladega, Alabama, and great numbers of children of all ages went near and in view of said spiral conveyer over said street and on said playground daily which facts were all known to the agents or servants of the defendant in charge of the operation of said conveyor and said conveyor was attractive to children when same was revolving or was being operated as aforesaid, same going around in auger fashion and carrying waste or other substance to a point on same approximately to within four feet of the end of same and dropping said waste or other substance while said conveyor continued to run and said conveyor was very dangerous to the lives and limbs of children of all ages and Plaintiff's age and the agents or servants of the defendant in charge of the operation of said conveyor knew that same was attractive to children of plaintiff's age and was very dangerous to the lives and limbs of children who might be attracted by it when it was unlocked, exposed and unguarded as it was before and on the date complained of and notwithstanding the agents or servants of the defendant in charge of the operation of said conveyor knew or by the exercise of reasonable care would have known that same was attractive to children and very dangerous to children who were attracted to it said agents or servants while acting within the line and scope of their employment as such agents or servants of the defendant did on said date negligently cause or allow said conveyor to be and remain open, exposed and unguarded while being operated and in plain view of children who were passing near or in view of same during all hours of the day as aforesaid knowing that some child or children including plaintiff would likely or probably be attracted by same, and would likely or probably be injured by it and as the proximate consequence of such negligence plaintiff who is a minor four years of age was attracted by said spiral conveyor while he was walking along and over said Broom Street near said conveyor and while standing near to said conveyor where same was exposed, turning, uninclosed and unguarded as aforesaid his clothing were caught in said conveyor and he was carried around with said conveyor which was about two feet from the ground and was mashed against same and the ground with great force and violence and as the proximate consequence thereof he was made sick and sore his back, head and hips were jarred, mashed and mutilated his left leg was broken about four inches above the knee, his liver, kidneys and bowels were jarred, mashed and mutilated and as the proximate consequence thereof he suffered great mental anguish and physical pain and will likely continue to suffer for the balance of his life, he was made a cripple for life and his earning capacity was greatly and permanently lessened to his damage as aforesaid. Plaintiff further avers that all said injuries and damages were caused by reason of and as the proximate consequence of the negligence of the agents or servants of the defendant while acting within the line and scope of their authority as such as aforesaid."

"Count A. The Plaintiff claims of the defendant the sum of Ten Thousand Dollars ($10,000.00), damages for that whereas on to-wit the 24th day of January, 1929 the defendant was operating an Oil Mill in Talladega, Alabama, between the Southern Railway and

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