Southern Car & Foundry Co. v. Bartlett

• Decision Date: 28 February 1903
• Citation: 137 Ala. 234,34 So. 20
• Parties: SOUTHERN CAR & FOUNDRY CO. v. BARTLETT.
• Court: Alabama Supreme Court

34 So. 20

137 Ala. 234

SOUTHERN CAR & FOUNDRY CO. v. BARTLETT.

Supreme Court of Alabama

February 28, 1903

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

Action by J. S. Bartlett against the Southern Car & Foundry Company for personal injuries. From a judgment for plaintiff defendant appeals. Reversed.

The several counts of the complaint construed in the opinion alleged the date of the injury and its nature and character and that plaintiff was in defendant's employment as a millwright. The negligence charged in the counts respectively, is as follows:

Count 1. Plaintiff was "so working under one Arthur Bradley as plaintiff's foreman, to whose orders he was bound to conform and did conform in the work in which they were engaged; that said injury resulted from his having so conformed to said orders; that they were engaged in taking down a broken piece of shafting, to which was attached a large pulley. Said shafting and pulley were some 12 or 15 feet from the ground. And said foreman negligently ordered and directed plaintiff and others engaged in the work to take out the bolts and fastenings which held said shafting and pulley in place, without in any way tying said shafting to prevent it from falling. That when plaintiff put his hand through the opening in said pulley to tie a rope to it for the purpose of letting it down, it fell and caught plaintiff's forefinger of his left hand between the rim of the pulley and the end of the shafting and pinched it off that said injury was caused by the negligence of said foreman, who was in the service of defendant, and in the exercise of superintendence intrusted to him by defendant."

Count 2. That on said date "plaintiff was working for defendant under one Arthur Bradley as his foreman, and at the time of said injury was engaged with others working under said foreman, in taking down a piece of broken shafting to which was attached a large pulley; that said shafting and pulley were some 12 or 15 feet from the ground, and the means which the defendant provided for taking it down was a large rope which was to be thrown over a plate above said shafting and pulley, and made fast to said pulley, so that it could be lowered by degrees and not allowed to fall; that said foreman was in the employ of defendant and had the superintendence of taking said shafting and pulley down intrusted to him, and whilst in the exercise of such superintendence negligently failed to tie or have said rope tied to said pulley and shafting before the fastenings which held the said pulley and shafting in place were taken loose, and negligently ordered and directed plaintiff and others engaged in said work to take out the bolts and fastenings which held said pulley and shafting in place, before tying said rope to said pulley. And plaintiff avers that the taking out of said bolts and fastenings before said rope was tied to said pulley left it with nothing to hold it except the pressure of its ends against the flanges to which it had been bolted, and in a dangerous condition, being liable to fall on receiving the slightest jar, and when plaintiff attempted to tie the said rope to said pulley, it did fall and caught plaintiff's finger," etc. That the bolts which held said shafting and pulley in place were taken out before said rope was tied to said pulley, and by reason of this negligence, plaintiff received his said injury.

Count 4. "That at the time of said injury plaintiff was working for defendant under one Arthur Bradley as his foreman, and was engaged with others in taking down a broken piece of shafting to which was attached a large pulley; that said Bradley had superintendence of plaintiff and also of the work of taking down said piece of broken shafting; that plaintiff was bound to conform to the orders of said Bradley, who was also in the employment of said defendant, and did so conform at the time of said injury; that said Bradley, while in the exercise of such superintendence over plaintiff and over the work in which he was engaged, to wit, in taking down said piece of broken shafting, negligently ordered and directed plaintiff to take the bolts and fastenings out of said piece of broken shafting before tying it in any manner to prevent it from falling, and negligently ordered and directed plaintiff to tie said piece of broken shafting after the bolts and fastenings were taken out; that plaintiff was bound to conform to the orders of said Bradley; that plaintiff complied with said order and while he was in the act of doing so said piece of broken shafting fell and caught plaintiff's finger," etc.; that plaintiff was injured through the said negligence of said foreman in giving said order.

Count 5. "Plaintiff avers that his forefinger was mashed off by the falling of a piece of broken shafting with a large pulley on it; that said shafting fell and said injury was inflicted by reason of the negligence of defendant's employé, Arthur Bradley, who was in charge of the work of taking down a piece of broken shafting at defendant's plant; that said injury resulted to plaintiff while acting under the orders of defendant's said employé, who had charge of said work, and while conforming thereto; that plaintiff was bound to conform to the orders of defendant's said employé who was his superior and in charge of the work of taking down said shafting."

The defendant demurred to count 1 upon the following grounds: (1) It does not sufficiently appear from said count that plaintiff's injuries resulted from his having conformed to the orders of defendant or defendant's foreman. (2) It does not appear that it was necessary for plaintiff to have put his hand through said opening in said pulley. (3) It does not appear from said count but that plaintiff was guilty of negligence in sticking his hand and fingers through said opening in said pulley. (4) It does not sufficiently appear from said count that defendant or its foreman was guilty of any negligence, such as would entitle plaintiff to recover. (5) It was the duty of the plaintiff and others engaged in the work to have tied said shafting to prevent it from falling, before taking out the bolts and fastenings, which held said shafting and pulley in place. (6) For plaintiff to put his hand through the opening in said pulley, when it was in a falling condition, without the same being tied or secured in any way, was negligence, for which the plaintiff cannot recover. (7) It was the duty of said plaintiff to have tied or fastened the said pulley before taking out the bolts securing the same, without any orders from said foreman to that effect. (8) It does not appear from said count that said plaintiff was not aware of the fact that said pulley and shafting were not tied secure. (9) It appears from said count that there was a perfectly safe way to have done the work, i....