Tallassee Falls Mfg. Co. v. Moore

• Decision Date: 19 November 1908
• Citation: Tallassee Falls Mfg. Co. v. Moore, 158 Ala. 356, 48 So. 593 (Ala. 1908)
• Parties: TALLASSEE FALLS MFG. CO. v. MOORE.
• Court: Alabama Supreme Court

48 So. 593

158 Ala. 356

TALLASSEE FALLS MFG. CO. v. MOORE.

Supreme Court of Alabama

November 19, 1908

Rehearing Denied Jan. 14, 1909.

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Personal injury action by George W. Moore against the Tallassee Falls Manufacturing Company.Judgment for plaintiff, and defendant appeals.Affirmed.

The complaint as amended was as follows:

Count 1: "Plaintiff claims of defendant $10,000 damages, for this: That on or about the 6th day of February, 1903, the defendant was conducting and operating a rock quarry, from which it was taking large stone for building and other purposes, which said stones were hoisted or raised by means of ropes, pulleys, and other appliances, and placed on a car and removed or conveyed to other points; that plaintiff was employed by defendant to work at said quarry, and to assist in and about the handling or moving of said stones therefrom and therefore it was the duty of said defendant to have in its said quarry and in its said plant for handling and removing said stones good and safe machinery and appliances and to have said machinery run and operated with care; that on the date above mentioned, while plaintiff was on defendant's car, engaged in the proper discharge of his duties for the defendant, while aiding and assisting in placing on said car a large stone, which was being lowered onto said car preparatory to being removed to another point or place, said stone fell, and plaintiff's foot was caught under said stone, and between said stone and the bottom or floor of said car, and was thereby so crushed and damaged that it was necessary to amputate a part of his said foot.Plaintiff avers that said injury to him was suffered because of the wrong or negligence of defendant in having and using in the operation of said quarry, and removing said stone, machines or appliances which were defective, out of order, and unsafe and unfit to be used in said business, in this: That a rope, which was a part of the ways, works machinery, or plant used in the operation of said quarry, was old, worn, and not sufficiently strong to support the weight placed upon it in handling, removing, and conveying said stone, and said defect caused said rope to break, and permitted said stone to fall as above averred, and that said defects arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service of the defendant and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition, and which, but for the want of proper care and diligence, would have been known to the defendant."

Count 2: Same as count 1, with the exception that it is alleged that rocks were being removed by means of a derrick, to which were attached ropes, pulleys, and other appliances, and that while lowering said rock onto the car the rope broke and permitted it to fall on plaintiff's foot, etc.

Count 3: Same as 1 and 2, with the additional allegation that the rock was being raised by means of dogs or iron hooks, in which it was clasped, and by which said rocks were held and supported, and that the dogs or hooks were fastened to a rope attached to a pulley or pulleys suspended from a derrick, and that while lowering a stone into the car the rope broke causing the rock to fall on defendant's foot, etc.

Count 4: Substantial duplicate of count 1, except the word "rock," instead of "stone," is used.

Count 5: Same as count 1, down to and including the words "run and operated with care," with the following additional averments: "That on the date above mentioned, while plaintiff was on defendant's car, in the proper discharge of his duties for the defendant, a large rock, which was held or procured by means of dogs or iron hooks, in which it was clasped, which said dogs or hooks were fastened to a rope attached to a pulley or pulleys suspended from a derrick, was being lowered onto a car upon which plaintiff was working for defendant, when the rope by which said rock was suspended broke, permitting said rock to fall, and plaintiff's foot was caught under said rock, and was so crushed and mangled that it was necessary to amputate his said foot.For a large part of the time he avers that said rope was old, much worn by long use, its strength greatly impaired, that it was defective, and wholly insufficient for the purpose for which it was being used, or for the work required of said rope; and plaintiff avers that his said injury was suffered because of the wrong or negligence of the defendant in having and using in the working and operation of said quarry, and in the removing of said rocks or stones, the said rope which was defective, insecure, and out of order, and unsafe and unfit to be used in said business, and which, but for the want of proper care and diligence, would have been known to the defendant, and all of which was unknown to plaintiff."

Count 6: Same as count 1, down to and including the words "same had to be amputated," and continuing: "And plaintiff avers that said rope was old and worn by use, and in one part of it had become much weakened, and was wholly insufficient for the work for which it was being used, because it was not of sufficient strength to support the weight that it was required to sustain."Then follows the concluding allegation of count 1.

Count 9: Same as count 1, down to and including the words, "run and operated with care," with the following addition: "That on the day above mentioned, while plaintiff was at work on defendant's car, in the proper discharge of his duties to defendant, and while aiding and assisting in the placing upon said car a stone which was being lowered into said car preparatory to being removed to another point or place, the rope, which was the necessary part of the works, ways, machinery, or appliances by which said stone was sustained, broke, and said stone fell with great force and power, and plaintiff's foot was caught under said stone, and between said stone and the bottom or floor of said car, and was thereby so crushed, mashed, and mangled that it was necessary to amputate a part of plaintiff's said foot, and a part of plaintiff's said foot was amputated, to his permanent injury and great damage and suffering, both in body and mind.Plaintiff avers that said injury to him was caused by reason of the wrong or negligence of one Abraham Smith, who was in the service or employment of defendant, and who had superintendence of the plaintiff and of said ways, works, machinery, and appliances, and said rope intrusted to him, and who was at the said time in the exercise of such superintendence, in this: That said rope by which said stone was suspended was worn, decayed, and weak, and was not strong enough to hold said stone; wherefore it broke, and that said Smith negligently allowed the said rope to be used in hoisting the said rock when it was worn, weak, and decayed as aforesaid, and said Smith had knowledge of the worn, weak, and decayed condition of said rope herein alleged, or could have had knowledge of same with the exercise of proper care and prudence."

Demurrers were interposed to counts 1, 2, 3, 4, 5, and 6 as amended, as follows:

To each of the counts separately: "(1) For that it does not state facts sufficient to constitute a cause of action against defendant.(2) Negligence is alleged merely as a conclusion of the pleader.(3) The particular negligence that is complained of is nowhere alleged or set out.(4) It nowhere appears that the wrong or negligence of defendant contributed to the injury.(5) It does not appear what particular appliances were defective, insecure, out of order and unsafe and unfit to be used, or what was the particular negligence of defendant.(6) The allegations were so vague, indefinite, and uncertain that it is impossible to ascertain under what section of the employer's liability act the count is framed, if any.(7) It does not appear whether it was the machine or whether it was the appliances which were defective, out of order, etc.(8) There is no such description of the machines or appliances which are alleged to be defective, etc., as to inform defendant of the particular machines or appliances referred to.(9) Said counts impose a too high duty upon defendant in alleging that it was his duty to have in said quarry good and safe machinery and appliances.(10) It does not appear that defendant failed to use reasonable care to procure safe and suitable machinery and appliances for use in said work, or that it failed to use reasonable care...