Sloss-Sheffield Steel & Iron Co. v. Dobbs

• Decision Date: 16 April 1914
• Docket Number: 706
• Citation: 65 So. 360,187 Ala. 452
• Court: Alabama Supreme Court
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. DOBBS.

65 So. 360

187 Ala. 452

SLOSS-SHEFFIELD STEEL & IRON CO. v. DOBBS.

No. 706

Supreme Court of Alabama

April 16, 1914

Rehearing Denied May 21, 1914

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by Sam Dobbs, by next friend, against the Sloss-Sheffield Steel & Iron Company, for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

The pleadings sufficiently appear from the opinion, except count C, which alleges the negligent order as follows:

Of some person in the service or employment of defendant whose name is to defendant unknown, to whose orders and directions plaintiff at the time of his injury was bound to conform and did conform, and his injuries resulted in his having so conformed in this: He negligently ordered plaintiff to work in close and dangerous proximity to said cable or iron rope, and because thereof plaintiff was struck and injured as aforesaid.

The following is charge 4 refused to defendant:

The court charges the jury that, if you believe the evidence in this case, you cannot find for plaintiff on account of the negligence of defendant's servant Long.

Tillman Bradley & Morrow and Frank M. Dominick, all of Birmingham for appellant.

Bondurant & Smith, of Birmingham, for appellee.

SAYRE J.

Action by appellee, under the Employers' Liability Law, for personal injury received while in the employment of appellant.

The trial court's separate rulings in holding counts A, B and C of the complaint good against demurrer are assigned for error. Counts A and B, after setting out in a common statement the relation of the parties, that plaintiff was injured by a cable or iron rope striking him while at work for defendant at Bessie, where defendant operated a mine, and that his injury was caused by reason of a defect in the condition of the defendant's ways, works, machinery, or plant, particularize the lack of proper condition as follows:

Count A:

"Said cable was not sufficiently and properly held in place."

Count B:

"Said cable was insufficiently and improperly held in place in that it was not held in place by means of a wheel, or roller, or iron brace."

The statute (section 3910 of the Code) holds the master or employer liable to answer in damages to his servant or employé in certain conditions:

"When the injury is caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with, or used in the business of, the master or employer."

Appellant seems to deal with these counts as designed to charge a defect in the condition, structure, or fitness of the cable, without regard to its use in connection with correlated parts of defendant's ways, works, machinery, or plant, and yet failing to show that the cable in and of itself was defective. If a proper arrangement of the cable for use with reasonable safety required that there should be some device for holding it in place, then the absence or inefficiency of such device would constitute a defect, within the meaning of the statute. The name or description of the device is not alleged in count A, but its proper use and its absence or inefficiency for its purpose is shown; and without approving the count in every respect, for it probably needed amendment in one respect, we think it stated a cause of action and was proof against the grounds of demurrer assigned.

Appellant urged upon us the decision in Woodward Iron Co. v. Johnson, 150 Ala. 365, 43 South.

186. The court's criticism of the complaint in that case was sound, though technical. It proceeded upon the idea that the language used was to be taken and accepted at exactly its face value. The language was that "said defect consisted in using a timber buggy, without, etc."; and the court held the complaint to aver a negligent user rather than neglect in furnishing a defective timber buggy. It seems clear on this statement that a like criticism cannot be...