Davis v. Kornman

141 Ala. 479 | Ala. | 1904

HARALSON, J.

The plaintiff, William Komman, brought suit against the defendant, Matt L. Davis, to recover damages for a personal injury received by 1dm while in tlie employment of defendant. Before the submission of the cause to the jury he requestd that it be ■ submitted to be tried alone on the second count in the complaint, abandoning all the other counts which Avas done. The second count and issue joined thereon, constitute the pleadings. The count alleged in substance, that on the 14th of June, 1902, the defendant Avas operating a planer mill in manufacturing lumber, and plaintiff and others were employed as hands to operate said mill, under one D. B. Taylor, Aylio was engaged as foreman, entrusted by defendant Avith superintendence of the operation of said planer and of the plaintiff and other hands; that the plaintiff Avas injured by certain belt studs Avhieli broke out of the belt used in running and operating the plainer, and struck the plaintiff inflicting on him physical, injuries, caused by reason of the-negligence of said foreman while in the exercise of such superintendence.

It Avas shoAvn, Avithout conflict in evidence, that plaintiff Avas employed at the time in the defendant’s.mill as an assistant to the feeder at a planing machine, the belt of which revolved very rapidly over two pullies about flve feet apart, and on the day of the accident, the feed-way of the machine became choked, and the feeder stepped one side for the purpose of unchoking it. The eyi-dence further tended to sIioav, that the plaintiff stepped up from behind the feeder some tvvo feet to the feeder’s place, to assist in getting the: machine unchoked, when the belt broke or the bolt or brads of the belt fleAv out and struck him; that the ends of the belt AATere fastened together by Blake belt studs, and the injury Avas caused by the studs Avhich flew out and struck him, or lie was injured by the end of the belt striking him.

There aauis dispute in the evidence as to whether the Blake belt studs were dangerous on account of their liability to fly out of the belt Avhen it broke, and as to Avliether they Avere the best appliances for fastening the ends of the belt. It Avas also in dispute as to whether there ought to be protecting boards so adjusted to' the machine as to prevent the studs, Avhen they break and fly out from striking the feeder and his assistant. The evidence tended to show that these protections were not attached to the machine when constructed, but when found, were put on by those who operated the machine. It was also further shown, that other persons besides plaintiff, had been injured in a similar manner, and that after his injury these, protecting boards were put up.

While witnesses for the plaintiff were being examined, the plaintiff asked one of them, “Was plaintiff an industrious man or not?” “During that year, had he been idling his time away, or had he been working and industrious?” “While the plaintiff was working at the planer mill, did you know whether he worked steady?” Each of these questions was objected to, because it called for irrelevant and immaterial evidence. To the first question the witness replied, that he seemd to be an industrious man at the time he worked there, that he worked pretty steady, .getting $1.25 a day.

To the second question, the reply was made, that when plaintiff could get work, he did it; he did not seem to be a lazy man, and to the third, the witness replied that the plaintiff was not very stout or able bodied to do heavy work, hut was always trying to go ahead at something.

These questions and answers were improper. When the accident results in death it may be material to show the habits of the deceased for industry, for the purpose of throwing light on the injury as to what he might have earned for those entitled to his estate; but the question here, was not what the next of kin lost, the injured party not having been killed, but what he himself lost in consequence of the injuries sustained, and whether he was industrious or not; whether he was habitually an industrious man or not, and whether or not he had been industrious during the year of the accident, were inquiries immaterial to the injuries sustained, the only effect of which was to create sympathy for plaintiff and to improperly magnify his damages. — L. & N. R. Co. v. Woods, 115 Ala. 527.

II. Crabtree for plaintiff, testifying about this particular belt, stated that it had been running for a few days previous to the time it broke and struck plaintiff; that belts fastened in the same manner sometimes broke, and he had known the studs to fly out when the belt broke and for one or two of them to strike persons. The plaintiff enquired, “Who was it that was hit in this way?” An objection being overruled, the witness stated, “Hubert Baker got hit on the leg, and Charles Malachi was struck in the eye.”

The witness P. Crabtree stated that he worked in the mill, and was told that the belt that injured plaintiff was the one on the* smallest machine. The plaintiff then a deed him, “How far off from the belt were you when you got hurt?” He replied that he did not know, but was standing back of the machine, and handing up lumber to feed it. The plaintiff objected to; the question as calling for irrelevant and immaterial matter. The witness' stated that that was the same machine that he had heard of, in connection with plaintiff’s injury. He was then asked by plaintiff, “Now what happened?” He replied that the belt broke and one of the rivets flew out and struck him on the thigh and hurt him, going through his pants and sticking in his flesh. To this question the defendant objected on the same grounds. The plaintiff then asked, “Did Mr. Taylor know of that?” and he replied that he saw it.

There was- no error in allowing these questions. Their object was, to show that the machine was liable to injure persons standing near while operating it, and in the position the plaintiff was, when injured; and that it was negligence in Mr. Taylor, the superintendent, in charge of the machine and its operation, if he did not provide against these damages, particularly if he knew about them.

For the same purpose and reason, a similar question asked the witness, Smith, was proper. He was also asked, “Are there any bruises, or scars or anything on your leg,” and he replied, “Yes there is a little place there.” This question was objected to as being irrelevant and immaterial. He further stated that it was the end. of the belt that struck him, and he did not think any of the rivets hit him, and said, “When it broke it slapped me and knocked my pants off,” and I had on a lace shoe, and it tore the lacing off,” and that he would ncd say that any of the rivrets struck him. Whether stricken by the belt or by the metal rivets, could make no difference in the admissibility of the evidence, as tending to- show the character of the machine, and the damages attending its operation, bearing on the question of the negligence of the superintendent in operating it.

Referring to boards- put up around the machine to protect the workmen from flying belt or studs, a witness for plaintiff was asked, “Is there any protection there,, to protect you from those flying studs, put there since the accident?” Both questions were objected to, as calling for irrelevant and immaterial matter, which objections were overruled. The first Avitness replied, “that such boards or protections had been put up since the accident,” and the other, that “there is a board put up there since the accident.” In this there Avas error. The evidence Avas incompetent. — Going v. Alabama Steel & Wire Co. (in MS) 37 South 784.

A Avitness Avas asked by plaintiff, “Was there any contrivance on that machine originally, that Avas not on there •«''hen Mr. Kornman got hurt, and if so Avhat was it?” The Avitness replied, “that there had been a little tightener Avhich had been taken off.” The' defendant objcted to the question calling for the evidence, because irrelevant and immaterial, AA'hich objection was overruled. The objection was good. What the tightener had to do Avith the injury plaintiff receivd, does not appear. Its purpose AAras¡ simply to tighten the band Avhen it became loose and slipped. Its presence or absence does not appear' to have had any causal connection Avith the running of the machine and the injury.

•The plaintiff being examined was asked by Ids counsel, “Have you any property at all?” He replied, he had not. The objection to- the question for immateriality and irrelevancy ought to have been sustained. — Postal T. C. Co. v. Hulsey, 115 Ala. 194.

One ¡Seeley being examined by plaintiff, testified tliat be was a planer-mill foreman, and bad been for fifteen years; tliat there was danger in tlie use of Blake studs, in tliat they are liable to break in two and fly out and strike a person; tliat they run over a small pulley, and are liable to break in tlie center at any time; tliat sometimes tlie pieces fly cut and go witli force, and at other times they do not, owing to the rapidity with wliicli the belt runs; that sometimes they go to tlie floor and stop there; that the belt runs three thousand revolutions to the minute, and that if one of the studs hits the operator, they are liable to go through him, fifteen or twenty feet off. lie was asked “What is the proper precaution to. take, to guard the employes, and men working at the planer, from being struck, when you are using Blake studs?” The witness replied, that “It is according to the way you run the belts. Behind the machine, and on the side of the belts, we have boards there to protect the belt.” The objection to the question, as calling for incompetent testimony, Avas. properly overruled. The Avitness had shown that it Avas dangerous to run the machine Avithout protectors, and the Avant of them, Avas twidence tending to sIioav negligence on the part of the person charged Avith its operation.

For like reason, the question propounded to Louis Jensen Avas allowable. He had testified that the Blake studs sometimes fly out venr hard, but Avere not ahvays dangerous; that to pmrent this a protector can be put up behind the machine.

The question cm the cross, to defendant’s Avitness, ('heasman, asking him to tell the Avages he got in the mill, Avas improperly admitted. What Avages the Avitness Avas receiving did not tend to sIioav Avliat wages plaintiff, in a different employment or position in the mill, ought to be allOAved for the time he Avas kept from Avork by the accident. The same is true of those questions propounded to Avitnesses calling for a scale of Avages that the employes in the diffreent positions in the mill Avere getting. If the evidence Avas sought on the theory, that if the plaintiff had not been injured, he might have been promoted to some higher position in the mill, it was speculative, and. could not furnisli a basis for tbe admeasurement of damages. — Nave v. A. G. S. R. Co., 96 Ala. 264.

Assignment of error 24 is,. “The court erred in charging the jury, of its own motion, in substance, that if a person finds that a thing he is doing is dangerous, he must discontinue itsi use or malee it- safe (Record, p. 69).” On page 69 of the record, no such charge appears. Nor does such charge appear elsewhere in the transcript. What was intended to be assigned as error, no doubt, was that part of the oral charge which we have marked No. 2 on the margin on page 66 of the transcript, but it is not in substance the one specified in assignment of error 24, which assignment we cannot, therefore, consider.

The same thing is true of assignment of error 25. That assignment refers to the charge, assigned as erroneous, appearing on p. 69 of transcript, and no such charge there appears. There is a. charge on p. 64, which we numbered 1, on the margin, which is probably tin; one referred to, but it is materially different, and we do not, therefore, treat of this assignment.

Charges, numbered 2 and 3, given for plaintiff, are criticised because they instinct the jury, that they must find for the plaintiff if they believe the facts hypothesized without stating that they should believe them from the evidence. Tlijs objection is unavailing. If the defendant apprehended injury from this form, an explanatory charge should have been asked. — Hall v. Posey, 79 Ala. 84.

Charge 7 was bad. It imputed negligence to Taylor in not lacing the band, upon the ground that it had previously proved to be dangerous when fastened together with studs, without hypothesizing a knowledge of Taylor or noticé to him of such facts.

When referred to* the evidence, we discover no error in the 10th and 13th charges for plaintiff.

Plaintiff relied on the second count for recovery, basing the right to recovery on account of the negligence of the superintendent in providing and using the particular belt, fastened with Blake studs, It is not a count for recovery for defects in tlie machinery or appliances, and no recovery was sought for these, as is supposed, disconnected with the alleged negligence of the superintendent in supplying and using this sort of a belt. There was no error in refusing to give charge G requested bv defendant. — L. & N. R. Co. v. Jones, 83 Ala. 381, 382; L. & N. R. Co. v. Bouldin, 110 Ala. 185.

While it is true that an employer is not required to use the best possible appliances, to protect his.employes from danger, and while he may show,' in order to rebut Hie charge of negligence on his part, that the appliances that he did use were such as were adopted and used by many prudent persons.engaged in the same kind of business, yet such evidence does not exempt the employér from liability. Prudent persons may do imprudent things, and may fail to use proper appliances for the safety of its employes. Charge- H, for.defendant, was properly refused.

Reversed and remanded.

McCeeeeax, O. J., and Dovdeee and Denson, J.J., concurring. _