Ragland Brick Co. v. Bell

• Decision Date: 11 May 1916
• Docket Number: 7 Div. 783
• Citation: 197 Ala. 14,72 So. 380
• Parties: RAGLAND BRICK CO. v. BELL.
• Court: Alabama Supreme Court

72 So. 380

197 Ala. 14

RAGLAND BRICK CO. v. BELL.

7 Div. 783

Supreme Court of Alabama

May 11, 1916

Rehearing Denied June 30, 1916

Appeal from Circuit Court, St. Clair County; J.E. Blackwood, Judge.

Action by Jeff Bell, by next friend, against the Ragland Brick Company, for damages. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts of 1911. Affirmed.

The second count alleges in effect that plaintiff was employed by defendant at its plant at or near Ragland, St. Clair county Ala., and that on a certain day, while engaged in the discharge of his duties as such employé, a hammer fell and struck him on the head, causing certain injuries which are enumerated. It is averred that his said injuries were proximately caused by reason of the negligence of defendant in this: The defendant negligently failed to furnish plaintiff a reasonably safe place to work.

The following charges were refused to defendant:

(4) The court charges the jury that if they find from the evidence in this case that Superintendent Quillan warned plaintiff to go away from the smokestack and go back to the work assigned him, and if they further find that the boy returned to the work about the smokestack without the knowledge or consent of Quillan, they must find the issue in favor of defendant.

(5) The court charges the jury that if they reasonably find from the evidence that Mr. Quillan warned plaintiff away from the smokestack, and that the boy returned to work about the smokestack, and was there without the knowledge or consent of Mr. Quillan, then plaintiff was there at his own risk, and the jury cannot find a verdict for plaintiff.

Embry &amp Embry, of Ashville, for appellant.

Wilbur J. Edwards, of Birmingham, and Ed. S. Watts, of Montgomery for appellee.

SAYRE J.

Virtually, by instructions given the jury on request of the defendant, the court eliminated all issues save those raised by the second count of the complaint. As for any exceptions taken by the demurrer the sufficiency of the allegation of a common-law cause of action in this count has been more than once sustained. Gray Eagle Coal Co. v. Lewis, 161 Ala. 415, 49 So. 859; Smith v. Watkins, 172 Ala. 502, 55 So. 611.

In this count the action proceeded on the theory that reasonable care for plaintiff's safety in his place required that defendant should have provided against his injury by objects falling from the top of the stack while building. Under the evidence, this was a question for the jury, and while we are inclined to think that a conclusion to the contrary would have been perhaps more reasonable, we...