Going v. Alabama Steel & Wire Co.

• Decision Date: 01 December 1904
• Citation: 141 Ala. 537,37 So. 784
• Parties: GOING v. ALABAMA STEEL & WIRE CO.
• Court: Alabama Supreme Court

37 So. 784

141 Ala. 537

GOING v. ALABAMA STEEL & WIRE CO.

Supreme Court of Alabama

December 1, 1904

Appeal from City Court of Birmingham; Charles Senn, Judge.

Action for personal injuries by Howard Going, by his next friend against the Alabama Steel & Wire Company. From a judgment for defendant, plaintiff appeals. Reversed.

The complaint contained four counts, marked, respectively "A," "B," "C," and "D," Count "A" averred that on the 21st day of April, 1900, defendant was engaged in operating a rod and wire mill for the manufacture of wire nails, etc., near Ensley, Ala., and in said mill the process of drilling iron and steel by certain machinery was conducted by defendant which said work, when done by an inexperienced and youthful workman, without due warnings and instructions, was dangerous; and plaintiff avers that defendant, knowing his tender age and inexperience, and the danger to him of such position by reason thereof, employed plaintiff at work in drilling in said mill as aforesaid, and negligently failed to give plaintiff, who was, to wit, only 15 years old reasonable instructions and warnings concerning the work and danger aforesaid, by reason of which said negligence of the defendant, plaintiff's right forefinger was caught in said machinery which he was operating as aforesaid, on, to wit, the 21st day of April, 1900, and cut off. Count "B," after averring the business of the defendant alleged that: "Plaintiff, while employed in the business of defendant in said mill, was injured by having his right forefinger caught and cut off by a drilling machine which he was operating in the course of his duties under such employment. And plaintiff avers that the machinery which he was operating as aforesaid was defective, hazardous, and dangerous to the plaintiff, and exposed the plaintiff, who was young and inexperienced in said work, and, by reason thereof, did not realize said danger, to probable injury, and likeliness to receive such an injury as he did receive. And plaintiff avers that such injury was caused as aforesaid by reason of the wanton and reckless negligence of defendant in causing plaintiff to work at said defective, dangerous, and hazardous machine, as aforesaid, without giving warnings or instructions concerning the said danger, and with full knowledge on the part of defendant of said dangerous, defective, and hazardous condition to plaintiff of said machine, and full knowledge of plaintiff's youth and inexperience, and the further knowledge that plaintiff would likely receive such an injury as he did receive." Count "C" averred that: "Plaintiff was in the employment of defendant, engaged in drilling iron and steel in said shop by means of a machine operated by steam power, and in doing so he was required to use drilling machinery run by steam power, belting pulleys, and shafting; and the belting which ran the machine which plaintiff was operating was controlled by an instrument, to wit, a shifter, attached to and forming a part of said machinery. And plaintiff avers that, for the controlling and holding in place of said instrument or shifter, defendant used a small piece of wood or stick, which was liable to shake out of place and let the machine suddenly start to running. And plaintiff avers that he was young and inexperienced with said machinery, all of which, including knowledge of the use of said stick or piece of wood, and its liability to get out of place and improperly start the machinery, was known to F. B. Leonard, a foreman or superintendent of defendant over plaintiff in said mill. And plaintiff avers that said injury was the proximate consequence and by reason of the said negligence of said F. B. Leonard, a person in the service or employment of defendant, who had superintendence intrusted to him, whilst in the exercise of such superintendence, in that, the said F. B. Leonard, with knowledge of all the facts and circumstances aforesaid, negligently set or continued plaintiff at work under said circumstances as aforesaid, by reason of which said negligence of said F. B. Leonard, plaintiff was injured as aforesaid. The averments of negligence in count "D" are sufficiently shown in the opinion. Demurrers were filed to the first three counts of the complaint, and were sustained in the trial court. On this appeal the court, holding that there was no evidence to support the allegations of these three counts, does not review the rulings of the city court on the demurrers, and consequently the demurrers are not set out. The pleas were the general issue, contributory negligence, and assumption of risk by the plaintiff. A plea number 10 was filed specially to count "D," and was as follows: "And defendant says that the plaintiff was guilty of negligence which proximately contributed to his alleged injuries, in this: that plaintiff negligently remained in the service of defendant, in the operation or direction of said machinery, with full knowledge of the facts and conditions therein alleged, for an unreasonable length of time." This plea was demurred to upon the following grounds: (1) Because it fails to allege that the plaintiff remained in the said service as aforesaid with knowledge of his danger; and (2) because the said plea fails to allege that the danger of remaining in said service under said condition was so great that a person of ordinary prudence would not have done so. This demurrer was overruled by the trial court.

The plaintiff was examined as a witness in his own behalf, and testified that he was 15 years old at the time of the injury that when he was hurt he had stopped the machine and put a plain stick in the machine; that he laid the piece of stick between the notch and the peg on the shifter and stopped the machine, and went to take the drill out to sharpen it, and, as he went to knock it out, the machine started and caught his hand in the drill, and cut his right forefinger off between the first and second joints; that the machine was started by the stick, which was plain and about three inches long falling out; that the jar of the machine would sometimes shake the stick out and start the machine; that, when the stick stayed in, the belt would stay on the loose pulley, but it would slip back on the tight pulley and start the machine if the stick dropped out. He further testified that the machine was not level on the floor, and that he had told the foreman, Leonard, that the machine would start off, and that Leonard had promised to fix it, but had not done so while witness stayed there. He stated that he had no previous experience before coming to work for defendant and had worked for it about four months, and had worked on the press which hurt him about three weeks at the time of his injury; having worked on a smaller drill about a month prior to that time. He stated that the foreman, Leonard, had told him always to stop the press to take out the drill, and "never to put my finger under a hole to see if the drill was coming through"; that he showed him how to start and stop the machine, and told him to keep it greased, to keep it from getting hot; and that these were the only instructions that had ever been given him in regard to the machine. One Pennington, a witness for the plaintiff, testified that he had worked for the defendant, and had used the same machine which hurt him; that he used this machine about three weeks before the plaintiff was hurt; that a small stick would be placed on the shifter when same was pulled back, and this would prevent the machine from starting; that this stick without a notch in it would shake out, and the shifter would work back on the tight pulley and start the machine; that witness himself cut a stick with a notch in it to fit around the peg on the belt shifter, and this held the machine all right when he used it. One Wrenn, a witness for the plaintiff, testified that he had worked on the same machine used by the plaintiff, and that when he used it a plain stick, picked up anywhere, was used to hold the belt shifter in place; that he had seen a set screw used on shifter in place of stick, but the threads were worn, and the screw lost out, and latterly a plain stick was used. The stick would drop out, from the quivering of the unsteady machine, and the belt would gradually work over on the other pulley and start the machine. One Busby, a witness for the defendant, then testified that he was standing within a few feet of the plaintiff when he was injured, but did not see the accident. "Saw the plaintiff holding his finger up, and he told me that he got hurt by feeling underneath the hole to see if the drill was through. I took his finger from under the header bar on the drill-press table." He then testified that the machine in question was originally constructed without a set screw, but that he could not say whether one had been...