Huyck v. McNerney

• Decision Date: 18 November 1909
• Citation: 50 So. 926,163 Ala. 244
• Parties: HUYCK v. MCNERNEY.
• Court: Alabama Supreme Court

50 So. 926

163 Ala. 244

HUYCK v. MCNERNEY.

Supreme Court of Alabama

November 18, 1909

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

Action by John McNerney against Charles L. Huyck for injuries received while engaged in doing the work for which he was employed. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The complaint was as follows:

Count 1: "Plaintiff claims of defendant the sum of $10,000 damages, for that on, to wit, the 25th day of August, 1907 the defendant was engaged in the business of doing the cement work in connection with erecting a certain seven-story brick building on Commerce street in the city of Mobile, Alabama and used in said business tools, implements, and appliances of various kinds, such as saws, hammers, planers, and ladders; that plaintiff was employed by the defendant to work in or on said building, and was so working at the time he received the injuries herein complained of, and therefore it was the duty of said defendant to have in said building and said business good and safe tools. implements, and appliances; that on, to wit, the 25th day of August, 1907 while the plaintiff was in said building engaged in the proper discharge of his duties for the defendant, a ladder in said business, and upon which plaintiff was descending from the roof of said building to the seventh floor, fell while plaintiff was thereon, and violently threw plaintiff to the fourth floor of said building, thereby breaking one of plaintiff's shoulders, injuring his back, breaking his leg, injuring his head, and otherwise injuring and wounding him, and plaintiff suffered great mental and physical pain, and was rendered unable for a long time to work, and was put to great inconvenience and trouble and expense for medicine and medical attention in his efforts to heal up and cure said wounds and injuries. And plaintiff avers and alleges that the wrongs and injuries complained of were suffered because of the wrong or negligence of the defendant in having in said building in said business said ladder upon which he was descending, which ladder was defective, out of order, and unsafe, and unfit to be in said business, and which, but for the want of proper care and diligence, would have been known to the defendant."

Count 3: "Plaintiff claims of the defendant the further sum of $10,000 as damages, for that on or about the 25th day of August, 1907, defendant was engaged in the business of doing the cement work in connection with erecting a seven-story brick building on Commerce street in the city of Mobile, known as the 'Hunter Building,' and in connection therewith and as accessory thereto the defendant was using a certain ladder for the purpose of aiding his employés to ascend from the seventh floor to the roof of said building and to descend from the roof to the seventh floor of said building. Plaintiff alleges that on said day he was in the employ of defendant, and was engaged in working in or on said building under said employment, and that while in the discharge of his duties it became necessary for him to descend on said ladder from the roof of said building, and while he was engaged in or about descending on said ladder it slipped and fell, and violently threw plaintiff to the fourth story of said building, and as a proximate consequence thereof [here follows same allegation of injuries as in first count]. Plaintiff alleges that his said wounds and injuries were caused by defects in the conditions and ways, works, machinery, or plant connected with or used in said business of the defendant as aforesaid, which defect consisted in this: That the ends of the ladder upon which defendant was descending were round at the bottom, and thereby rendered said ladder liable to slip and fall, and said ladder was not braced to prevent it from slipping and falling, which defects arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service of defendant intrusted by the defendant with the duty of seeing that the ways, works, machinery, or plant were in proper condition."

Count 4: Same as 3, down to and including the statement of the wounds and injuries, and the allegation is that the ladder was defective on and down which plaintiff was endeavoring to descend, and that the defect arose from or had not been discovered and remedied, etc.

Count 5: Same as the third count, down to and including the list of injuries, with the allegation that the injuries were caused by reason of a defect in the condition of the ways, works, etc., and the defect consisted in the fact that the ladder down which plaintiff had to descend was not braced so as to prevent its slipping and falling, with the allegation that the defect arose from or had not been discovered through negligence, etc., as in count 3.

The tenth ground of demurrer to the first count is that said count does not allege any negligence on the part of this defendant in failing to provide a reasonably safe ladder for the purpose of its said business. The sixth ground was as follows: "Because, for aught that the said count shows, the falling of said ladder was caused by extraneous circumstances or the acts of other parties." The eighth ground is because said count does not show that the ladder was provided by this defendant. (11) "Because said count does not show any negligence proximately causing the injuries complained of." The first ground of demurrer is that the counts do not show that the injury was caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the defendant.

R. W. Stoutz, for appellant.

Fitts & Leigh, for appellee.

McCLELLAN J.

The first count is not drawn to declare a liability under the liability act. It is for a breach of the common-law duty in respect of furnishing instrumentalities employed in the business of the master. 1 Labatt, §§ 22a, 23, and notes Ryan v. Miller, 12 Daly (N. Y.) 77. It is sufficient in its...