Vaughn v. Dwight Mfg. Co.

• Decision Date: 27 October 1921
• Docket Number: 7 Div. 212.
• Citation: 206 Ala. 552,91 So. 77
• Parties: VAUGHN v. DWIGHT MFG. CO.
• Court: Alabama Supreme Court

91 So. 77

206 Ala. 552

VAUGHN v. DWIGHT MFG. CO.

7 Div. 212.

Supreme Court of Alabama

October 27, 1921

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

Action by J. A. Vaughn against the Dwight Manufacturing Company, a corporation, and another. Judgment for the named defendant and the plaintiff appeals. Reversed and remanded.

Where an action for injuries to a servant was originally instituted against the master and a fellow servant, and the fellow servant was eliminated under his plea by verdict in his favor at the first trial, there was no error in permitting plaintiff, before the second trial, to eliminate the fellow servant as a party.

On the second trial W. T. Christopher was eliminated as a party defendant. The following are the counts of the complaint referred to in the opinion:

(3) The plaintiff claims of the defendant the sum of $20,000 damages for that, on and prior to the 27th day of November, 1917, the defendants were engaged in the erection of a large three-story building at Alabama City, Ala.; that on, to wit the 27th day of November, 1917, the plaintiff was in the service or employment of the defendants at said building under one R. S. Kershaw as superintendent or foreman, engaged in hoisting heavy planed timber or lumber from the ground or floor to the roof of said building, by means of a rope sling placed around such timber or lumber, which said rope sling was then attached to a hook and then hoisted by means of rope and tackle to said roof; that the plaintiff, while actively engaged in the duties of his employment on said ground floor, a piece of timber or lumber so being hoisted, when near said roof, suddenly fell and struck another piece of said timber or lumber, causing said last-named piece to fly up and strike plaintiff on the left side of his head, knocking out the left eye of plaintiff and seriously fracturing plaintiff's skull, rendering him unconscious for a long period of time; as proximate cause of said injuries, plaintiff suffered great mental and physical pain, incurred large doctor's and hospital bills in seeking to be cured of said injuries; that plaintiff's left side and arm are practically paralyzed; lost a long time from his daily avocation; is permanently disfigured, and permanently injured for life, and is permanently rendered less able to earn money, all to his damage as aforesaid. Plaintiff avers that said injuries and damages proximately were caused by the negligence of R. S. Kershaw, a person in the service or employment of the defendants who had superintendence intrusted to him, and, whilst in the exercise of such superintendence in this, that said R. S. Kershaw negligently permitted or allowed lumber or timber to be placed at the point where plaintiff was so engaged in hoisting the same, so that, in the event one of the said pieces fell, it would strike the same and cause the same to fly up and likely injure plaintiff; that said superintendent knew, or by the exercise of reasonable diligence would have known, that such timbers were likely to fall and strike said timbers placed so near the place where plaintiff was so engaged in said work of hoisting lumber.

(5) Plaintiff as a part of count No. 5 adopts all of count No. 1 from its beginning down to and including the words, "all to his damage as aforesaid," and by adding thereto the following: Plaintiff's injuries and damages were approximately caused by reason of the negligence of R. S. Kershaw, who was in the service or employment of the defendants and who had superintendence intrusted to him, and whilst in the exercise of such superintendence, in this, that R. S. Kershaw knew, or by the exercise of reasonable diligence would have known, that in hoisting such timbers with said sling rope, that it was likely to fall, yet, with such knowledge negligently allowed or permitted other timbers to be placed so near that, in the event such timber fell, it would strike such other timbers and cause them to fly up and likely injure plaintiff, and plaintiff was so injured.

(7) The plaintiff, as a part of count 7, adopts all of count 1 from its beginning down to and including the words, "all to his damage as aforesaid," and by adding thereto the following: Plaintiff avers that said damages and injuries were proximately caused by the negligence of one R. S. Kershaw, who was in the service or employment of the defendants, and who had superintendence intrusted to him, and whilst in the exercise of such superintendence, in this, that said R. S. Kershaw as such superintendent furnished said sling, and knew, or by the exercise of reasonable diligence should have known, that, in hoisting heavy planed timber, with said sling, it would likely slip and fall; and, with such knowledge, he directed that the lumber so to be hoisted be placed so near the place where plaintiff and others were engaged in hoisting said timbers or lumber, that, in the event a piece of timber or lumber slipped and fell, it would likely strike such timbers so placed near said hoisting place and cause them to fly up and injure plaintiff, and plaintiff was so injured.

Count 11: The plaintiff adopts all of count 1 from its beginning down to and including the words, "and is permanently rendered less able to earn money, all to his damage as aforesaid," and by adding thereto the following: Plaintiff avers that said damages and injuries were proximately caused by reason of the negligence of one R. S. Kershaw, who was in the service or employment of the defendant, and who had superintendence intrusted to him, and whilst in the exercise of such superintendence in this, that said R. S. Kershaw knew or by the exercise of a reasonable diligence would have known, that, in hoisting such timbers with such sling rope, it was likely to fall, yet, with such knowledge, negligently allowed or permitted other timbers to be placed so near and across a platform that parts of such timber reached beyond the edge of said platform, that, in the event any such timber being hoisted fell, it would strike such other timbers extending beyond such platform and cause them to fly up and likely injure the plaintiff, and plaintiff was so injured.

The other facts sufficiently appear.

P. E. Culli, of Gadsden, for appellant.

Dortch, Allen & Dortch, and O. R. Hood, all of Gadsden, for appellee.

THOMAS J.

This suit was for personal injury. The first appeal is reported in 203 Ala. 462, 83 So. 327.

The last trial was had on counts 3 and 5 of the original complaint, and counts 7 and 11 added on the second trial. The general affirmative charge was given at the request of defendant.

Appellee insists that one Christopher, as an independent contractor, and not Dwight Manufacturing Company, was engaged in erecting the said building when and where plaintiff was injured. The evidence was discussed on former appeal and held sufficient to make a jury question whether the negligence that injured appellant was that of an independent contractor or of defendant, and is not materially changed. Dwight Mfg. Co. v. Vaughn, supra; Republic I. & S. Co. v McLaughlin, 200 Ala. 204, 75 So. 962; Hubbard v. Coffin & Leak, 191 Ala. 494, 67 So. 697; Republic I. & S. Co. v. Luster, 192 Ala. 501, 68 So. 358; Warrior-Pratt C. Co. v. Shereda, 183 Ala. 118, 62 So. 721; Harris v. McNamara, 97 Ala. 181, 12 So. 103.

It may be well to note that the gravamen of the amended counts was (of count 7), that:

"Such superintendent furnished said sling, and knew, or by the exercise of reasonable diligence should have known, that, in hoisting heavy planed timber with said sling, it would likely slip and fall, and, with such knowledge, he directed that the lumber so to be hoisted be placed so near the place where plaintiff and others were engaged in hoisting said timber or lumber, that, in the event a piece of timber or lumber slipped and fell, it would likely strike such timber so placed near said hoisting place and cause them to fly up and injure plaintiff, and plaintiff was so injured"

-and (of count 11) that:

"Plaintiff avers that said damages and injuries were proximately caused by reason of the negligence of one R. S. Kershaw, who was in the service or employment of the defendant, and who had superintendence intrusted to him, and whilst in the exercise of such superintendence in this, that said R. S. Kershaw knew, or by the exercise of a reasonable diligence would have known, that, in hoisting such timbers with said sling rope, it was likely to fall, yet with such knowledge negligently allowed or permitted other timbers to be placed so near and across a platform that parts of such timber reached beyond the edge of said platform, that, in the event any such timber being hoisted fell, it would strike such other timbers extending beyond such platform and cause them to fly up and likely injure the plaintiff, and plaintiff was so injured."

The duty of the court in giving or refusing the general affirmative charge requested often discussed need not be repeated. McMillan v. Aiken, 205 Ala. 35, 88 So. 135; Houston v. Elrod, 203 Ala. 41, 81 So. 831; Willingham v. B. R. L. & P. Co., 203 Ala. 351, 83 So. 95; Ellard v. Goodall, 203 Ala. 476, 83 So. 568; Carpenter & Co. v. Naftel, 203 Ala. 487, 83 So. 471.

In Wheeler v. Standard Steel Co., 196 Ala. 634, 72 So. 254, and Southern Railway Co. v. Carter, 164 Ala. 103, 51 So. 147, was approved the much-quoted definition of negligence contained in Blythe v. Birmingham Waterworks, 11 Ex. Rep. 784. The many times affirmed rule of the Armstrong Case, 123 Ala. 233, 26 So. 349, is:

"The logical rule in this connection, the rule of common sense and human experience as well

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