Warble v. Sulzberger Co. of America

• Decision Date: 15 January 1914
• Citation: 64 So. 361,185 Ala. 603
• Parties: WARBLE v. SULZBERGER CO. OF AMERICA.
• Court: Alabama Supreme Court

64 So. 361

185 Ala. 603

WARBLE v. SULZBERGER CO. OF AMERICA.

Supreme Court of Alabama

January 15, 1914

Appeal from City Court of Birmingham; William M. Walker, Judge.

Action by Edward Warble, a minor, against the Sulzberger Company of America. From a judgment for defendant, plaintiff appeals. Affirmed.

Harsh Beddow & Fitts, of Birmingham, for appellant.

Estes Jones & Welch, of Bessemer, for appellee.

McCLELLAN J.

Action by a servant (appellant) against the master (appellee) for personal injuries received while performing duties under his employment. While cleaning a room, his hand came in contact with the unguarded revolving fenders of a fan used for ventilation; and two of his fingers were severed from the hand. At the request of the defendant, the court gave the general affirmative charge for the defendant. But two assignments of error are urged in brief, viz., that predicated of the overruling demurrer to special plea 12, and that based upon the giving of the affirmative charge as stated.

The judgment entry recites a ruling on demurrer to plea 12; but there is, in this record, no demurrer to that plea. There is a demurrer to special plea 11 set out in the record; but no recital in the judgment entry of a ruling on demurrer to plea 11. There is a reference, on the margin of the record doubtless made by the clerk to demurrer to plea 12, but the pleading against which the marginal reference is made takes no account of plea 12. That demurrer is addressed to plea 11. The question argued in brief for appellant cannot be considered in this state of the transcript.

For two reasons error cannot be pronounced of the action of the court in giving the affirmative charge. First. While the bill recites that it contains all the evidence adduced, the bill affirmatively shows that a view was taken by court and jury of the scene and means of plaintiff's injury, and a demonstration was then given court and jury, by plaintiff, of the way in which he was hurt, giving his position, the position of the piece of paper which he was, when injured, engaged in removing, and his own various motions and movements; the fan being at rest when he made the demonstration. Manifestly this court has not before it the full evidential data the trial court had before it. Under such circumstances, we must apply the pertinent rule soundly announced by the Court of Appeals in Sloss-Sheffield Co. v. Redd, 6 Ala.App. 404, 60 So....