Action
by Joseph Walker against the Southern Cotton Oil Company.
From a judgment for plaintiff, defendant appeals. Reversed
and remanded.
The
complaint is as follows:
Count
1: "Plaintiff claims of the defendant $10,000 as
damages, for that on, to wit, the 13th day of February, 1905
plaintiff was an employé of the defendant, engaged in its
service at defendant's Cullman oil mill, in Cullman
county, Ala., and in the course of his employment as such
employé it became and was plaintiff's duty to operate
that portion of the machinery connected with defendant's
said plant known as the 'linter,' a machine used to
gin from cotton seed the lint adhering thereto before they
were used in the manufacture of oil; and on the date
aforesaid, while plaintiff was engaged in and about his
duties aforesaid, his left hand and arm were caught in said
machine, and lacerated, torn, bruised, and injured in such
sort that plaintiff suffered the loss of his said hand and a
part of his arm, and was caused to suffer great pain and
agony, and his body was permanently crippled and disfigured
to his great damage. Plaintiff avers that said injury was
caused by reason of a defect in the condition of the ways
works, machinery, or plant connected with or used in the
business of the defendant at the said mill aforesaid, in that
one of the flues connected with the said linter, the office
of which was to carry the lint ginned by the said linter from
the cotton seed into the pressroom, was so negligently
constructed and so crooked that it would at short intervals
become choked and obstructed, and caused the lint to choke
said machinery, in such sort as, and if not immediately
relieved, the friction caused by the rapid revolution of the
cylinders in said machine would ignite the lint and endanger
the destruction of said plant; that it was plaintiff's
duty as such employé of said defendant to relieve said
machinery when it became choked, and on the date aforesaid
said machine did become choked, and while engaged in his duty
as aforesaid he received the injuries complained of. Said
defect arose from, or had not been discovered or remedied
owing to, the negligence of defendant, or of some person in
its service intrusted by it with the duty of seeing that its
ways, works, machinery, or plant was in proper
condition." The count as amended alleges, in addition to
what is alleged above, that the linter was so negligently
constructed and so crooked that it became choked and
obstructed, and in discharging his duties in operating said
machine it became necessary for plaintiff to unchoke said
machine by pressing down on a lever connected to said machine
as a part thereof, and unchoke said machine by removing the
lint and other substance choking it from under the saws and
out of the breast thereof; that said machine is not equipped
with a reasonably sufficient appliance for properly raising
the breast of said machine and holding said breast up while
said machine was being cleaned out, and by reason thereof the
breast of said machine would unexpectedly fall or be jerked
down, and cause said lever to kick or jump, and as a
proximate consequence thereof plaintiff received the injuries
complained of.
As
originally filed, count 2 alleged the negligence to L. A
Curtis, who was charged with superintendence. As amended
count 2 is the same as count 1 down to and including the
words, "to his great damage," with the following
addition: "And plaintiff avers that his said injury was
caused by the negligence of the defendant in this: As a part
of said machine and connected therewith was what was known
and called a 'lever,' the office and function of said
lever being to lift the breast of said linter off of the saws
thereof when it became necessary to clean said machine, or to
unchoke or unclog said machine in the event it became choked
or clogged. Said lever was in part attached to said machine
by a hinge which was underneath the breast of said machine;
and plaintiff avers that said lever as a part of said machine
was defective in this: A bolt passing through said hinge
protruded beyond the end of said hinge and with a nut thereon
produced a 'shoulder' upon which at times lint would
catch cotton upon the end of this bolt or shoulder, and the
cotton so caught would become wrapped around said bolt or
shoulder, and by so doing would prevent said lever from at
all times holding up, after having once been lifted, the
breast of said machine off of the saws thereof. Or said
lever, as a part of said machine, was defective in this: It
was sprung, and at all times would not hold the breast of
said linter off of the saws thereof after said breast had
been lifted off of said saws, and by reason of said defect in
said machine it would at times allow the said breast, after
having been lifted, to fall, which would cause said lever to
jump, move, or kick. And plaintiff avers that on the day and
date aforesaid said machine became choked or clogged, and
while attempting to unchoke or unclog the same, and while in
the discharge of his duties as aforesaid in operating the
said 'linter' machine, that he attempted to lift the
breast of said machine by using said lever, and by reason of
said defect in said machine as is aforesaid the said lever
jumped, moved, or 'kicked,' throwing plaintiff
against the said machine and committing the injuries
complained of as is above set forth." And it then
concludes as does count 1.
Count
21 lays the damages at $15,000, and alleges the relation and
injuries as does count 1; and it is averred that the injuries
were caused proximately by reason of a defect in the ways,
works, machinery, or plant of said defendant used at its said
oil mill, which arose from, or had not been discovered or
remedied owing to, the negligence of some person in its
service intrusted by it with the duty of seeing that its
ways, works, machinery, or plant was in proper condition,
with the following addition: "As such employé the work
at which plaintiff was engaged and intrusted to do by
defendant was to operate, run, or attend the operation of a
machine constituting a part of defendant's plant, called
a 'linter,' the office of which was to gin from
cotton seed the lint adhering thereto; and because of said
defective condition of said machine, or the flues or
condenser connected therewith, said machine frequently became
choked, in such sort as, if not relieved, the rapid
revolution of the cylinders or saws in said machine would
ignite the lint therein; that said machine was provided with
a lever, the office of which was to raise the breast of said
machine when it became choked, that said machine might be
relieved from its said choked condition; that in order to
relieve said machine, when it became choked, plaintiff in the
discharge of his duty in operating said machine was required
to press down on said lever, and thereby raise the breast of
said machine off of the saws therein; that said lever when in
good condition could be pressed down, and the breast of said
machine would thereby be lifted off of and held away from the
saws of said machine by the weight of said breast; that at
the time of the injury complained of the said lever was so
defective that when it was pressed down it would not hold up
the said breast at all times, but would sometimes move, jump,
or 'kick,' so as to allow said breast to fall; that
on the day and date aforesaid plaintiff, while in the
discharge of his duties as employé as aforesaid in operating
said machine, pressed down on said lever to relieve said
machine when it became choked as aforesaid, and the lever
moved, jumped, or 'kicked' in such sort as to cause
plaintiff to be thrown on or against said machine, thereby
causing his injuries, to his damages in the sum of $15,000.
Wherefore he brings this suit."
Demurrers
were interposed to these counts as follows: To count 1:
"(1) Vague, uncertain, and indefinite. (2) It is not
alleged with sufficient certainty what duty defendant owed to
the plaintiff, or wherein or how defendant violated any duty
it owed to the plaintiff. (3) It is repugnant and
inconsistent in its allegations as to the proximate cause of
plaintiff's injuries. (4) It is not shown with sufficient
certainty that the defect alleged proximately caused the
plaintiff's injuries. (5) It does appear that plaintiff
was aware of the defect alleged and received his injuries
while attempting to repair same. (6) Plaintiff himself was
intrusted with the duty of seeing that the defendant's
ways, works, machinery, and plant were in proper condition,
so far as appears from said count. (7) It is not shown with
sufficient certainty whether the defect alleged or
plaintiff's attempt to adjust the machine caused his
injuries. (8) It appears that it was plaintiff's duty to
relieve said machine when it became choked, and that he
received his injuries while so doing, and not on account of
said alleged defect. (9) The defect complained of was the
remote cause of plaintiff's injury. (10) The facts
alleged do not show a defect in the condition of said flue.
(11) It is not alleged with sufficient certainty that the
defect alleged was the proximate cause of the injury. (12)
The allegation is by way of conclusion merely." To count
2: The same demurrers as to count 1, with the additional
demurrers that the averment that one of the flues was so
negligently constructed and so crooked that it became choked
and was obstructed is a mere conclusion of the pleader. To
count 21: Same as to counts 1 and 2, and the other counts in
the complaint.
The
following pleas were filed by the defendant: "(2)
Defendant says that plaintiff himself...
