Lamson & Sessions Bolt Co. v. McCarty

• Decision Date: 25 March 1937
• Docket Number: 6 Div. 952
• Citation: 234 Ala. 60,173 So. 388
• Court: Alabama Supreme Court
• Parties: LAMSON & SESSIONS BOLT CO. v. McCARTY.

173 So. 388

234 Ala. 60

LAMSON & SESSIONS BOLT CO. v. McCARTY.

6 Div. 952

Supreme Court of Alabama

March 25, 1937

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Action for damages by J. Kermit McCarty, a minor, suing by his next friend and father, R.O. McCarty, against Lamson & Sessions Bolt Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Martin Turner & McWhorter and J.C. Blakey, all of Birmingham, for appellant.

Taylor & Higgins, of Birmingham, for appellee.

KNIGHT Justice.

Suit by plaintiff to recover damages for personal injuries alleged to have been suffered by plaintiff while upon premises of defendant.

The complaint avers that plaintiff was upon premises of defendant as an invitee, and while there received his injuries as the proximate consequence of a negligent breach of duty owing by defendant to the plaintiff. Not only does the complaint allege in terms that the plaintiff was an invitee, but it alleges sufficient facts to show that he was in fact such invitee at the time the accident and injury occurred. Therefore, the complaint showed a legal duty resting upon the defendant to exercise reasonable care and diligence to keep the premises in a reasonably safe condition for the uses contemplated by the invitation, and to warn the invitee of known dangers, or dangers that ought to have been known, and of which the invitee was ignorant. The complaint avers that defendant breached its duty to plaintiff by maintaining the floor in said premises, where plaintiff fell, at said time and place, in an unsafe condition for the use of invitees upon said premises.

It is true that the breach is averred in rather general language and is but a little short of a legal conclusion, yet this is sufficient to meet the rule of our decisions. F.W. Woolworth Co. v. Erickson, 221 Ala. 5, 127 So. 534; Shelby Iron Co. v. Morrow, 209 Ala. 116, 95 So. 370; Mobile Light & R.R. Co. v. Therrell, 205 Ala. 553, 88 So. 677

.

The complaint was sufficient and not subject to any ground of defendant's demurrer. The court properly so held. Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443; F.W. Woolworth Co. v. Erickson, supra; Shelby Iron Co. v. Cole, 208 Ala. 657, 95 So. 47; Farmers' & Merchants' Warehouse Co. v. Perry, 218 Ala. 223, 118 So. 406; Mudd et al. v. Gray, 200 Ala. 92, 75 So. 468; Brigman v. Fiske-Carter Construction Co., 192 N.C. 791, 136 S.E. 125, 49 A.L.R. 773.

It is next insisted by the appellant that under the evidence it was entitled to the general affirmative charge.

The evidence tended to show that the appellant, defendant, had ordered from the Commercial Casting & Manufacturing Company an iron casting to be used in repairing one of its machines; that the appellee, an employee of the company was directed to deliver the casting to the defendant at its place of business in Birmingham, Ala.; that about seven in the evening on the day of the accident, and pursuant to his said instructions, the plaintiff, appellee, put the casting in his car, and drove to the defendant's place of business to make delivery to the defendant; that when plaintiff reached defendant's place of business, around 7 p.m., the gate to the fence inclosing defendant's shops and office was closed. That plaintiff drove up to this gate and was admitted by the man in charge of said gate, and who had authority to do so, and was directed to carry the casting to the machine shop, telling plaintiff that there was a man there to receive and install the casting; that plaintiff then carried the casting to the machine shop, and, on entering the shop, the plaintiff was told to put the casting on the planer; that plaintiff then started to the planer as directed, but in doing so his feet struck against, or upon a hose or tubing approximately one-half inch in diameter, and which was attached to an air compressor, but which was lying at the time upon the floor of the shop, and he was thrown to the floor of the shop, the casting falling upon his hand. One of his hands was caught between the floor and the iron casting, and was painfully bruised and injured. The casting weighed about fifty-seven pounds, and was twenty-seven or twenty-eight inches long, and one and a half inches thick by five inches in width. The plaintiff, while walking from the door to the planer, carried the casting in front of him, holding it with one hand on each end. There were a number of machines in the shop, and the evidence tended to show it was well lighted at the time. There was a place on the air compressor upon which to roll the hose or tubing which tripped plaintiff.

The testimony further tended to show that the plaintiff did not see the hose before he stepped on it.

It further appears that the defendant's shop closed about 4:30 p.m. each day, and that Mr. Dedman, the master mechanic of defendant, had notified the plaintiff's employer that deliveries would have to be made before 4:30. However, this witness testified further: "The Lamson and Sessions Bolt Company does not keep a man on the gate outside there. He don't stay at the gate. He stays up in the plant. The gate is locked, and when anybody comes to the gate he is charged with the duty of going up there and either let them in or refuse them admittance and when they come there on business, especially after the plant is closed, he is to direct them where to go, let them in at least and if he let them in they've got authority to be in the yard."

On cross-examination, the plaintiff testified in...