Pell City Mfg. Co. v. Cosper

• Decision Date: 14 January 1911
• Citation: 172 Ala. 532,55 So. 214
• Parties: PELL CITY MFG. CO. v. COSPER.
• Court: Alabama Supreme Court

55 So. 214

172 Ala. 532

PELL CITY MFG. CO. v. COSPER.

Supreme Court of Alabama

January 14, 1911

On Application for Rehearing, May 5, 1911.

On Application for Rehearing.

Appeal from Circuit Court, St. Clair County; John W. Inzer, Judge.

Personal injury action by Robert F. Cosper against the Pell City Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The second count is as follows: "Plaintiff claims of the defendant the other and further sum of $10,000 as damages for that the defendant was on, to wit, the 22d day of July 1907, engaged in operating a cotton factory at Pell City Ala., and on said date had plaintiff in its employ, and plaintiff in discharge of his duties to the defendant attempted to oil a revolving fan operated by the defendant in its factory, and for such purpose stepped upon a plank which had been provided by the defendant as a place for its agents and servants to approach said fan and stand while oiling said fan, and plaintiff slipped or fell against said fan, and in attempting to recover his position while falling he involuntarily threw his hand against said fan, and said fan cut off one of his fingers and a part of his hand and wrist and from said injury he has suffered [here follows catalogue of his injuries and special damages]; and plaintiff avers that the said injury was caused by reason of a defect in the ways, works, machinery or plant connected with or used in the business of the defendant, and that said defect arose from, or had not been remedied or discovered owing to, the negligence of the defendant, or of some person in the service of the defendant, and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition. That said plank on which plaintiff stepped as above stated was too narrow for the purpose for which it was constructed and used, and it was about 18 feet above the floor of the building, and the said plank had been rendered slippery to approach said fan, and was a dangerous place on which to stand while attempting to oil said fan, and plaintiff avers that said defect was the proximate cause of said injury."

A summary of the findings by the court was that plaintiff was an employé of the defendant as second man in the work or room, while one Thornberg was the first man in said work or room, and that plaintiff was second or subordinate to said Thornberg, and that the injury occurred in July, 1907, while plaintiff was so engaged in the service or employment of defendant; that for some time before the happening of the injury it was the duty or duties of the defendant to oil the fan that injured him, in the absence of one Watlington, and that Watlington was absent at the time plaintiff attempted to oil the fan; that at the time plaintiff undertook to oil this fan he did it in very much the same way he had done the work prior to that time; that he approached such fan from the window opening from the outside of the factory building on his hands and knees, believing this the safer way to do the work, and continued to crawl on his hands and knees on a plankway less than one foot in width, which was covered with lint cotton and dust; and that when plaintiff was near the fan, and attempted to rise to his feet with his oil can in one hand, he slipped and fell, and his left hand fell into or against the ventilator fan, which was moving very rapidly, and this fall was not the result of the negligence of the plaintiff, and the court fails to find that at and just prior to the time of the accident the plaintiff was guilty of negligence in failing to take hold of the ventilator's sprinkling pipe. Then follows a description of the visit of the court to the scene of the accident, his finding that the place was a dangerous place, and from the evidence it is found that the injury was caused by reason of the defect in the ways, works, etc., and that the danger or defect could have been remedied by the expenditure of a very small sum of money. Then follows a finding as to the amount of wages earned, etc., and the assessment of damages in the sum of $1,600.

Charles A. Calhoun and M. M. Smith, for appellant.

N. B. Spears and Smith & Smith, for appellee.

EVANS J.

The complaint as originally filed contained a single count, and, on demurrer being sustained to it, the complaint was amended by the filing of an additional count numbered 2. This latter count was based on subdivision 1 of the employer's liability statute (section 3910 of the Code of 1907). The injury complained of consisted in the loss of a part of plaintiff's hand, and was received while he was attempting to oil a ventilator fan in the defendant's cotton factory. The case was tried by the court below, without the intervention of a jury, on the plea of the general issue and special pleas of contributory negligence. There was a written request for and a special finding of the facts made by the court, and judgment rendered in favor of plaintiff, from which the defendant appeals.

The first question presented for our...