Melton v. E.E. Jackson Lumber Co.

• Decision Date: 17 April 1902
• Citation: 31 So. 848,133 Ala. 580
• Parties: MELTON v. E. E. JACKSON LUMBER CO.
• Court: Alabama Supreme Court

31 So. 848

133 Ala. 580

MELTON v. E. E. JACKSON LUMBER CO.

Supreme Court of Alabama

April 17, 1902

Appeal from circuit court, Chilton county; N. D. Denson, Judge.

Action by Peter B. Melton against the E. E. Jackson Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Craig &amp Craig and Ellison & Thompson, for appellant.

Pettus Jeffries & Partridge, for appellee.

McCLELLAN C.J.

This suit is prosecuted by Melton against the lumber company. Plaintiff seeks to recover damages for personal injuries alleged to have been sustained by him through the negligence of the defendant, or of an employé of defendant for whose negligence defendant is supposed to be responsible. The complaint, in its fore part, alleges that the injuries were "caused by the reason of the negligence of persons in the service or employment of the defendant, to whose orders or directions the plaintiff, as employé, at the time of the injury, was bound to conform, and did conform, and such injuries resulted from his having so conformed to said orders and directions"; but in its after part the complaint sets up that plaintiff's injuries were sustained in consequence of the failure of one Jones, another employé of defendant, a person to whose orders plaintiff was bound to conform, and under whose immediate charge plaintiff was, and whose duty it was to guard and protect and warn plaintiff, who was a deaf mute, against danger, etc., to notify the plaintiff of the danger of a falling tree which other employés negligently felled without using precautions to avoid injuring the plaintiff, and in consequence said tree fell upon plaintiff and injured him. It is apparent that this complaint is inartificially drawn, but it was not subjected to demurrer, and we will not consider whether it sets forth any cause of action, since, assuming that it does, the judgment below for the defendant must be affirmed on the ground that defendant was entitled to the general charge which was given; there being no evidence of any negligence for which defendant is responsible. The plaintiff, with 30 or 40 other laborers, was in the employment of defendant, and engaged, under Jones, as foreman or superintendent, in clearing the trees, etc., from a railway right of way, and constructing a roadbed thereon. He was deaf, but his sight was unimpaired. He, of course, knew (for he had been there several days while that work was going on) that trees were...