Stowers v. Dwight Mfg. Co.

• Decision Date: 20 June 1918
• Docket Number: 7 Div. 954
• Citation: 80 So. 90,202 Ala. 252
• Parties: STOWERS v. DWIGHT MFG. CO.
• Court: Alabama Supreme Court

80 So. 90

202 Ala. 252

STOWERS v. DWIGHT MFG. CO.

7 Div. 954

Supreme Court of Alabama

June 20, 1918

Rehearing Denied Nov. 14, 1918

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action by Henry E. Stowers against the Dwight Manufacturing Company for damages for injury while engaged in its employment. Judgment for defendant, and plaintiff appeals. Affirmed.

Before introducing evidence, by agreement of the parties, the court the jury, the attorneys, and the sheriff went to where the plant was located, and there viewed the machinery upon which plaintiff was working when he was injured. The machinery was manipulated by being started and stopped and regularly operated. The complaint charged negligence of one Harrison Collett, who had superintendence over plaintiff, and the machine which injured plaintiff at the time plaintiff was injured, and that said Collett negligently caused the plaintiff to attempt to clean the rollers on such slasher while the same was in motion, and as a proximate consequence plaintiff's hand was drawn in between the rollers and crushed. The second count charges that plaintiff is bound to conform to the order of said Collett, and that conforming to a negligent order to clean off one of the rollers in said slasher while it was in operation, knowing that it was dangerous for plaintiff to clean said roller while it was in operation, and that plaintiff would likely be injured in so doing, negligently ordered plaintiff to do so, and in obeying said order plaintiff's hand was caught and crushed.

The evidence tended to show that a piece of waste fell upon one of the slashers, and that Collett stopped the machine, took off a spool, cleaned the grease from the roller, started the machine, and told plaintiff to watch it, and not let there be too much waste, and that Collett then turned to another machine to the right of the one at which plaintiff was working; that plaintiff observed some grease on the roller and, while the machinery was in operation, picked up a piece of clean waste, and held it against the roller in an effort to clean off the grease, when some threads caught his hand and pulled it in between the rollers, crushing it. It also appeared from the evidence that the danger of trying to clean the rollers while they were in operation was open and obvious. It further appears from the evidence that plaintiff had been working in the mill about a month and a half, but just how long he had been working at this particular machine does not appear. There is some evidence tending to show that he was a helper of Collett, and that Collett was under Adams and that Adams was under Prince, who was chairman of the room. It was further in evidence that plaintiff knew it was dangerous to attempt to clean the rollers while they were in motion.

E.O McCord, of Gadsden, for appellant.

Dortch, Martin & Allen, of Gadsden, for appellee.

MAYFIELD J.

The action is brought under the second and third subdivisions of the Employers' Liability Act (section 3910 of the Code), to recover damages of the master for personal injuries to the servant. The trial was had on the general issue and the contributory negligence of the plaintiff, and the court gave the affirmative charge for the defendant. Plaintiff appeals.

The whole of the evidence is set out in the transcript and in the brief of counsel for appellant.

We are of the opinion that the trial court ruled correctly. Under our system of laws and the practice prevailing in our court for nearly 100 years, the power is vested in the court to determine whether the evidence offered tends to support the allegations of the party. The right should be cautiously exercised, but in some cases it is the duty of the court to direct a verdict when thereunto requested in writing, and a failure to do so will be error, for it is not only the right, but the duty, of the court. When the plaintiff has introduced his evidence, and it does not tend to prove his cause of action, the court may refuse to hear evidence offered by the defendant, and, if properly requested, direct the jury to find against the plaintiff; but it is only in the absence of all evidence against the defendant that the court should direct a verdict in his favor, and it is always error, and not within the discretion of the court, to leave a question to the jury in respect of which there is no evidence. If there is none to support the theory of fact assumed, the court should not let the case go to the jury; likewise, when the facts in the case are undisputed, and the evidence, with all the inferences which the jury can rightfully draw from it, does not as a matter of law have any tendency to establish the proposition which is essential to the maintenance of the action, it is the duty of the judge, if properly requested, to instruct the jury; but, if there be any evidence which tends to establish the plaintiff's cause, it is error for the court to withdraw the case from the jury or to direct a verdict. Tobler v. Pioneer Mining Co., 166 Ala. 517, 52 So. 86.

It is axiomatic to say that the plaintiff ought not to recover in a negligence case, unless he proves the negligence alleged; and he cannot recover even then, if he himself or the defendant prove that his (plaintiff's) own negligence proximately contributed to that...