General Supply & Construction Co. v. Shelton

• Decision Date: 12 November 1908
• Citation: 157 Ala. 635,47 So. 593
• Parties: GENERAL SUPPLY & CONSTRUCTION CO. v. SHELTON.
• Court: Alabama Supreme Court

47 So. 593

157 Ala. 635

GENERAL SUPPLY & CONSTRUCTION CO. v. SHELTON.

Supreme Court of Alabama

November 12, 1908

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Personal injury action by James Shelton against the General Supply &amp Construction Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Stevens & Lyons, for appellant.

Gordon & Eddington, for appellee.

McCLELLAN J.

The defendant (appellant) was engaged at the time of plaintiff's injury in the construction of a building, and to facilitate the raising of material therefor operated an elevator or hoist in a skeleton shaft parallel with and within about 3 feet of the wall of the building. McDaniels was foreman of the stone work and Rogers was foreman of the concrete work on the structure. The plaintiff was under the supervision and orders of McDaniels, who directed plaintiff to ascend the shaft and from a rest on the lateral timbers of the shaft and next the wall to assist in setting a large stone. The elevator appears to have occupied in its operation practically the full space within the shaft. Just before the injury in question the plaintiff was sitting on the lateral supports of the shaft, facing the wall, with his back to the shaft space. The timbers used in the construction of the shaft were not of sufficient size to obstruct a view of the appellee as thus situated. The elevator was driven by an engine stationed about 50 feet from the foot of the shaft and the engineer, or operator, one Torbett, was, from his place at the engine, favored with an unobstructed view of the entire shaft. Rogers signaled or called to Torbett to lower it, and in the process of doing so the plaintiff was struck and wounded by reason of the fact that a part of his body was, in his sitting posture, within the sweep of the descending hoist.

The complaint, as now important to be stated, sought to fix liability on the appellant by the application of subdivisions 2, 3, and 4 of the liability act (Acts 1907, p. 595, 596, c 80, § 3910), and would predicate that liability only upon the alleged negligence of Rogers in giving the order to the elevator operator to lower it while plaintiff was thus exposed to injury if the order was obeyed. There is no count in the complaint ascribing, as disclosed by the evidence, the proximate cause of the injury to any source other than to Rogers' alleged negligence in directing the elevator to be lowered, though of course this basic idea is undertaken to be brought in averment within the subdivisions stated. Negligence must arise out of a breach of duty, and hence the obligation assumed by the plaintiff, on his present pleading, was to show a duty on...