Coosa Manufacturing Co. v. Williams

133 Ala. 606 | Ala. | 1901

McOLELLAN, C. J.

The plaintiff was an experienced mill man. He had "worked for a long time in the mill in which his injuries were received, and at the time of receiving them he was and had for months been the foreman of that section of the mill in which he was hurt. He knew alL about belting pulleys in motion. If there was danger in attempting to belt the pulley he was engaged in belting at the time of his injury while it was in motion, he knew of that danger, its character ana extent fully as well as Barlow, defendant’s superintendent ; and that danger, certainly to a man of his acknowledged experience and familiarity with the matter in hand and the environment, was an obvious danger. Bo that, on the assumption upon which we are now proceeding, the plaintiff was under no duty to subject himself to this danger at the command of Barlow, the superintendent, and his doing so was such want of due care and prudence — such negligence contributing to his own hurt — as to constitute a full defense against the alleged negligence of Barlow in directing him to belt the revolving pulley. On the other hand, if the belting of the revolving pulley was not a dangerous thing for Williams to undertake, it was not negligence in Barlow to direct him to do it; and plaintiff can take nothing on account of Barlow’s said order. In any view of the case, therefore, the defendant was entitled to the affirmative charge on the ninth count of the complaint.

The seventh count, upon which with the ninth the trial was had, charges that Barlow negligently ordered Busby to raise the belt with a pole while plaintiff was engaged in and about putting it on the pulley, and that in carrying out this order Busby so raised the belt as to cause it to lap and double around the revolving shaft, on which was the pulley over which the belt was to be placed, and that this lapping and doubling of the belt around the shaft operated to catch plaintiff’s arm and inflict the injury complained of. There is some evidence tending to show that Barlow directed Busby to raise the belt with the pole; but there is a total absence of evidence going to show the lapping and doubling of the belt around the shaft was a necessary, probable, or likely result of raising the belt by means of the pole as directed by Barlow, or that the result should or could have been within the reasonable apprehension of an ordinarily careful and prudent man in Barlow’s place; nor was there anything inherent in the act of so> raising the belt to stamp it as a tiling at all dangerous to the comprehension of a careful man. The belt had to he raised in order to get it over the pulley. For Bushy to raise it with a pole would seem in all reason to lessen whatever danger there may have been in Williams’ effort to get it on the pulley. It would seem, too, to all reasonable observation that it could be safely raised without lapping or doubling it on the shafting by placing the end of the pole on file under or inner side of it, and that such lapping or doubling would not ensue at all unless the pole were applied obviously improperly to the end in view to the outside of the belt, thereby shoving the two parts below the pulley against each other, and jamming and doubling the one side up under the other and between it and the shafting. We are, therefore, of the opinion that the evidence does not at all support the charge that Barlow was guilty of negligence in the order given to Busby to raise the belt Avith the pole; that the only negligence in the premises of which there was any evidence was that of Bushy in the manner of attempting to execute a proper order, which negligence is not counted on, a,nd for which defendant could not be. held responsible to this plaintiff, and that the defendant was entitled to the affirmative charge on this seventh count also.

What is called the sixth count is no count at all, but a mere averment of special damage under counts seven and nine.

For the errors committed by the court in refusing charges 1, 2 and 3 requested by the defendant — affirmative charges with hypotheses on the complaint and on counts 7 and 9, respectively — the judgment must he reversed. The cause is remanded.

Reversed and remanded.