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...