Horan v. Gray & Dudley Hardware Co.

• Decision Date: 04 February 1909
• Citation: 48 So. 1029,159 Ala. 159
• Parties: HORAN v. GRAY & DUDLEY HARDWARE CO.
• Court: Alabama Supreme Court

48 So. 1029

159 Ala. 159

HORAN v. GRAY & DUDLEY HARDWARE CO.

Supreme Court of Alabama

February 4, 1909

Rehearing Denied April 6, 1909.

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by William Horan against the Gray & Dudley Hardware Company for damages for injuries suffered in the course of his employment. Judgment for defendant, and plaintiff appeals. Affirmed.

Count 1 was in the following language: "Plaintiff claims of defendant $10,000 as damages, for that on, to wit, the 4th day of January, 1905, plaintiff was the servant or employé of the defendant, and engaged in the discharge of his duties as such servant or employé, which duty was to go into the basement of a certain school building in Woodlawn, Ala., to take measurements for coldair pipes to a furnace which was being placed in said school building by defendant through its servants or employés. Plaintiff avers that in fitting said furnace in said school building, or preparing for its use or operation, defendant's said servants or employés, acting within the scope of their authority, dug or excavated a ditch or hole in the cellar or basement of said school building near or adjoining said furnace, which ditch or hole was uncovered and without guard or signal showing its existence and without anything to warn of its danger, and which said ditch or hole was dangerous to any one working in said basement or cellar near said furnace and without knowledge of the existence of said ditch or hole. Plaintiff avers further, that defendant's foreman, Ollie Chaddock, who had superintendence intrusted to him and was then in the exercise of his said superintendence, negligently failed to warn plaintiff of the existence of said ditch or hole, and as a proximate consequence of his negligent failure to warn plaintiff of the existence of said ditch or hole, plaintiff fell or stepped into said hole, and injured, strained, or broke his right leg or ankle, from which injury plaintiff suffered great physical and mental pain, and was caused to expend money and lose time in curing himself from his said injuries and hence this suit."

The fourth count is as follows: "Plaintiff claims of the defendant corporation ten thousand dollars ($10,000.00) as damages, for that on, to wit, the 4th day of January, 1905 plaintiff was employed and in the service of defendant, and in the discharge of his duty as defendant's agent or servant; that defendant was, through its agents or servants engaged in putting in or installing a furnace or heating apparatus in a school building in Woodlawn, Jefferson county Ala., and one Ollie Chaddock was the foreman of defendant, and he was delegated with authority from defendant to direct servants or employés of defendant engaged in that particular work. And plaintiff avers that the said Ollie Chaddock instructed the plaintiff to take certain measurements from a furnace in the basement of said school building, when there was but little light to enable plaintiff to see; and the said Ollie Chaddock negligently failed to tell, warn, or inform plaintiff that there was a hole or ditch near said furnace which was dangerous. And plaintiff avers that, as a proximate consequence of such negligent failure of the said Ollie Chaddock to warn plaintiff of...