Appeal
from City Court of Bessemer; J. C. B. Gwin, Judge.
McClellan
Mayfield, and Somerville, JJ., dissenting.
The
first count alleges that plaintiff's hand was caught in
the disk or side rods of said engine, and one of his fingers
cut off, and it is alleged that it was owing to a defect in
said engine, in that the steam valves or throttle valves
permitted steam to leak into the cylinders, causing the
engine to start up suddenly. Practically the same defect is
alleged in the second count.
The
following were the pleas referred to in the complaint:
"(18)
To each count of the complaint: Defendant says that
plaintiff was aware that steam was escaping from the
boilers into the cylinders of said engine, and that this
would probably cause the disk and side rod on said engine
to move at any moment, and with knowledge and appreciation
of the danger arising therefrom he voluntarily placed his
said hand on said disk or side rod, without necessity
therefor, and received the said injury.
"(19)
To each count of the complaint: That the plaintiff was
himself guilty of negligence which proximately contributed
to his said alleged injuries in this: That plaintiff, with
knowledge that steam was escaping from the boilers into the
cylinders of said engine, and in danger of causing the disk
or side rods of said engine to move, and with knowledge
that, should the said disk or side rod move while his hand
or arm was on or dangerously near the same, injury would
result to him, nevertheless negligently placed his hand or
arm on or dangerously near said disk or side rod on said
engine, whereby, and as a proximate consequence thereof
the said disk or side rods moved, and injured him as
aforesaid.
"(20)
To each count of the complaint: That plaintiff himself was
guilty of negligence which proximately contributed to his
said alleged injuries in this: That the defendant had
equipped the said machinery with a safety device by which
the steam could be cut off, so as to prevent the engine
from starting, owing to the defective valve, while work was
being done on said engine, and defendant avers that
plaintiff knew of this safety device, and knew that by
using it the steam could be cut off, and the engine
prevented from starting while he was working upon it; and
defendant further avers that plaintiff knew that, if the
steam was not cut off, the engine would likely or probably
start while he was working on it, and injure him, but
nevertheless the plaintiff failed to cut off the steam by
means of said safety device before beginning work on said
engine, and received the said injuries.
"(21)
To each count of the complaint: That plaintiff was himself
guilty of negligence which proximately contributed to his
said injuries in this: Plaintiff, well knowing the engine
on which he was at work would likely or probably start and
injure him if the steam was not shut off, nevertheless
negligently failed to shut the steam off said engine before
beginning work on said engine, and received his said
injuries.
"(22)
To each count: Plaintiff was himself guilty of negligence
which proximately contributed to his said injuries in this:
Plaintiff well knowing that the steam valve or throttle was
defective as alleged, and that the engine would likely or
probably start up while he was at work on the same, and that,
should the said engine start while his arm or hand was on the
disk or side rod on said engine, he would probably be
injured, nevertheless plaintiff negligently placed his arm
which was injured on the said disk or side rod, and received
his injury."
"(25)
To each count: Plaintiff himself was guilty of negligence
which proximately contributed to his injury in this: That
plaintiff, at and before the time of receiving his said
injury, knew that the throttle valve of the said engine was
defective, and that, when said throttle valve was closed
steam would nevertheless pass from the boilers into the
cylinders of said engine, and would cause said engine to
move, and that it was dangerous for him to place his hand on
the disk or rods of said engine, or between said disks and
said rods; and plaintiff knew that there was another and
safer way for him to do the work in which he was engaged at
the time he was injured, nevertheless plaintiff negligently
placed his said hand at the place where the same was injured,
and as a proximate consequence thereof was injured as
alleged."
"(27)
As amended (to each count of the complaint): That plaintiff
was himself guilty of negligence which proximately
contributed to his said injury in this: That he negligently
caused or allowed his said hand to be on or dangerously near
the disk or side rods of said engine, or between said disk
and said side rods, knowing that it was dangerous to cause or
allow his said hand to be at said place, or in said position
and knowing that the throttle valve of said engine was
defective, and that steam was passing from the boilers into
the cylinders of said engine, and that said steam would
probably cause said engine to start up when said steam
reached or acquired a certain pressure in said cylinder, and
that said certain...
