Kiker v. Hitt

• Decision Date: 07 November 1914
• Docket Number: 724
• Citation: 189 Ala. 652,66 So. 632
• Parties: KIKER v. HITT.
• Court: Alabama Supreme Court

66 So. 632

189 Ala. 652

KIKER v. HITT.

No. 724

Supreme Court of Alabama

November 7, 1914

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by George Kiker pro. ami against H.H. Hitt. From a judgment for defendant, plaintiff appeals. Affirmed.

F.E St. John, of Cullman, and E.W. Godbey, of Decatur, for appellant.

Callahan & Harris, of Decatur, for appellee.

MAYFIELD J.

Plaintiff a boy 17 years of age, while working for defendant, in running a machine known as an edger, had his hand cut by its coming in contact with the saws of the machine.

The plaintiff's evidence shows that he knew of the dangers attending the work he was engaged in; in fact, the dangers were obvious. Moreover, he had been told of the danger by the person working with him and aiding him in the operation of the machine, and, in addition, had been cautioned by his father (his next friend in this action), who was present when plaintiff was put to work at this particular machine.

Walter Williams, a witness for plaintiff, the man who was working with him in operating the machine, testified that he cautioned plaintiff and told him he should be careful about his fingers. The plaintiff himself testified on this subject as follows:

"My father was at the mill on the afternoon of the day I got hurt. I do not think he was there in the morning. While he was there, I was off-bearing and helping run the edger and rolling dust. He told me to be careful and not reach over after the strips, as the saw would not stop when I said 'Whoa;' that it was dangerous."

As to how the injury happened, plaintiff, as a witness for himself, testified, among other things, as follows:

"There was a big piece of timber already lying on the floor when we went to work, and we had to put another piece there to get it out of the way of the big saw, and these timbers lay right along where we had to walk to run the edger. We could have moved it and taken it from there, if we had had time. It gave us a pretty good load to put it there. I was injured about 4 o'clock. I had to hold the plank on the carriage by pressing down on it, and then push the carriage along against the saw, and walk along by the carriage over the timbers. I was holding it down on the front of the carriage, and Williams was holding down back of me. It was all done so quick that I could not tell whether the plank moved or not, but my hand slipped or the plank turned, one or the other, as I stepped off the last piece of timber there onto the floor. *** I observed that if my hand got too close to the saw it would be cut, and it was in line with the saw when I made this observation. If I had not gotten my hand moved, it would not have been cut. I do not know how my hand came to get into the saw, except as I passed it, and stepped off the timber, my hand came in contact with the saw. I am not sure that I stumbled. I had been going off that timber all the morning and stepping down the same way, and had been off-bearing and running the edger. *** I knew the saw teeth were on there. I had seen the saw while it was standing still, and it was four to six inches above the table. They could have explained to me about the machine. I was able to work and could see all right. My front hand was going by the saw, and I was looking at it."

Appellant's main insistence in brief is that the trial court erred in giving several instructions to the jury at the request of the defendant. Those which merit special notice are numbered 32, 34, 35, and 37. These instructions were as follows:

"(32) I charge you, gentlemen of the jury, that if you believe from the evidence that the plaintiff was placed at the work of off-bearing from the ripping saw in said mill by W.C. Wilhite, as foreman, and that he was bound to conform to such orders, and without the authority or consent of said Wilhite, or any one else in the service of the defendant with authority to give

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