Ritch v. Kilby Frog & Switch Co.
| Decision Date | 21 December 1909 |
| Citation | 51 So. 377,164 Ala. 131 |
| Parties | RITCH v. KILBY FROG & SWITCH CO. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Calhoun County; John Pelham, Judge.
Action by Arthur E. Ritch against the Kilby Frog & Switch Company for personal injuries. Defendant had judgment by direction of the court, and plaintiff appeals. Affirmed.
The plaintiff, Arthur E. Ritch, brought his suit against the Kilby Frog & Switch Company to recover the sum of $10,000 damages received by him while in the employ of the Alabama Frog & Switch Company, of which the Kilby Frog & Switch Company is the successor. The complaint contained eight counts. Each count averred that the plaintiff was injured while in the discharge of his duty in replacing a belt connecting one of the main shafts in said plant with a countershaft; that in order to replace the belt it was necessary for the plaintiff to mount upon a ladder, and that the ladder became jammed against a pulley on the shaft, and was broken, and by reason thereof the plaintiff had to turn loose the belt that he was endeavoring to replace on the pulley, and the belt thereupon lapped, pulling down the countershaft, and inflicting the injuries complained of. The first three counts averred that the injury was the proximate result of a defect in the ways, works, etc. The first count avers that the ladder was defective; the second count, that the ladder was defective, in that it was too short; the third count, that the ladder was too short and was weak. The fourth count alleged that the defendant was negligent in failing to provide a safe place for the plaintiff to work, in that it was necessary in the discharge of his duties to replace a belt while the shaft was revolving; that located on one side and almost immediately beneath the shaft was a heating furnace, and that the heat from said furnace was so great that it was not possible for the plaintiff to mount to the shaft on the side from which it was revolving, but that it was necessary to mount on a ladder on the opposite side of the shaft, toward which the shaft was running, and by reason thereof the ladder became jammed against the pulley and was broken; that, but for the location of said heating furnace he could have mounted on said ladder on the opposite side and replaced the belt in safety. The fifth count contained substantially the same averment as the fourth count, and avers that the defendant had negligently failed to place a platform under or near said shaft, upon which plaintiff might stand while replacing said belt. The sixth count alleged that the plant was defective by reason of the location of the furnace so near to said main shaft and beneath the same as to require the ladder to be placed on the side of the shaft toward which the pulley was revolving. The seventh count averred that the injuries were received by reason of the negligence of one C. H. Krauss, the superintendent, and that the negligence of Krauss consisted in placing on the floor below the main shaft the said heating furnace, which necessitated the plaintiff's mounting to said shaft on the side toward which it was revolving. The eighth count charged that the negligence was that of Superintendent Krauss, in that, knowing the location of the shaft and of the heating furnace, and the necessity of mounting to the shaft for the purpose of replacing the belt, he had negligently failed to erect a platform under or near said shaft, upon which the plaintiff might stand while replacing the belt.
The defendant demurred to each count of the complaint. The court sustained the demurrer to counts 4, 5, 6, and 8, and overruled the demurrer as to counts 1, 2, 3, and 7. The plaintiff assigns as error the action of the court in sustaining demurrer to each of said counts 4, 5, 6, and 8. The defendant interposed several pleas, to some of which demurrers were sustained, and the case was tried on the general issue, and on the third and fourth pleas, and plea B interposed to each count of the complaint, and the seventh eighth, and ninth pleas, which were interposed to the first second, and third counts, respectively. The third plea set up contributory negligence on the part of the plaintiff, in that he negligently placed his ladder against the revolving pulley while it was revolving. The fourth plea charged contributory negligence on the part of the plaintiff, in that there was a safe way to belt the said pulley, that is, by stopping the shaft and pulley from revolving, which the plaintiff had full power and authority to do, and averred that plaintiff chose an obviously dangerous way of attempting to replace the belt upon said pulley while the same was revolving. Plea B set up an assumption of risk, in that plaintiff was the foreman of the switch department in defendant's plant, and had charge of the machinery and appliances, including the ladders, and averred that the plaintiff knew of the alleged defects, and negligently remained in the employment of the defendant for an unreasonable length of time. The seventh plea, interposed to the first count, set up an assumption of risk, in that plaintiff knew that the ladder was defective, and knew the danger of using it in the manner alleged, and, notwithstanding, attempted to use the ladder. The eighth and ninth pleas were the same in substance; the only change being the charge of knowledge on the part of the plaintiff of the defect alleged in the second and third counts.
The evidence showed that the Alabama Frog & Switch Company and the Kilby Frog & Switch Company were each corporations under the laws of Alabama, and that they had consolidated in the manner provided by the statutes of the state, by the action of their board of directors, and that the name of the consolidated corporation was the "Kilby Frog & Switch Company." The evidence also showed that the plaintiff while in the employ of the Alabama Frog & Switch Company, and before the consolidation, received severe and dangerous physical injuries, which resulted in permanent injury. It showed that one of the duties of the plaintiff was to replace belts, and that he was notified by his superior in the service to put on the belt at the time he received his injuries. He found the ladder standing against the shafting. He testified that he could not tell whether the ladder was too short or too long until after he had gotten up on it and after it began to slip into the pulley; that, when he reached for the belt, it threw his weight on one side of the ladder, which caused it to go into the pulley, and to be caught by the spokes of the pulley and crushed. The belt then lapped around the shaft, and pulled down upon the plaintiff the countershaft. The undisputed evidence showed that a heating furnace was located below the shaft, and slightly to one side of it, and that the heat arose from this furnace to such an extent that a man could not mount on the side on which the furnace was located; that, but for the location of the furnace, the ladder could have been placed on the side away from which the pulley was revolving, and that the ladder could not have been crushed, had it been placed on that side. The evidence also showed that, had the ladder been long enough to reach beyond the top of the pulley, it could not have been crushed, although it might have been pulled against the pulley. The undisputed evidence showed that the plaintiff had no control over the ladders, and it was no part of his duty to make or repair them. He was an iron worker, while the ladders were made of wood. The ladder in use was made of wood. The upright pieces were 3 or 3 1/2 inches wide, and 1 inch thick at the bottom, and tapered to the top, where it was 2 to 1 3/4 inches wide. It was 12 or 13 feet long. The shaft was 10 or 10 1/2 feet above the floor of the shop. Plaintiff testified that he had notified the superintendent of the shop that, the furnace being...
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