Dimmick Pipe Works v. Wood

| Ala. | Nov 15, 1903

SHARPE, J.

As stated in the complaint, the cause of this action is that the defendant being engaged in the operation of cast iron pipe works, without the consent of the plaintiff, caused his son, aged fourteen, “to work in or about the running or operation of said pipe works, at a place, or at work which was highly dangerous to a person of his youth and inexperience, in consequence whereof, the son while so engaged, was thrown into a pit and so injured as to caunse a loss to plaintiff of his services,” etc.

It is assigned as error that on the trial plaintiff in testifying was, against objection, allowed to answer his counsel’s question: “State whether you consented for your boy to work at the foundry?” The question called for a fact material under the issues, and not for a mere uncommunicated mental status of the plaintiff as is here contended.

Testimony yms introduced tending to show that for some weeks before the accident, the boy had been employed at the Pipe Works, first to carry water and after-wards to pitch sand by the use of shovels into moulding flasks which stood in pits, that he was paid, fifty cents per day for 1ns services which money he delivered to the plaintiff; that plaintiff knew his son was working for defendant as a sand pitcher and neither made objection thereto, nor expressed, assent to the defendant, and that he did not know the duties of a sand pitcher extended to carrying sand about tlie pits in a wheelbarrow, or that the boy had been doing such work. Vessels from which molten metal were poured into the flasks were suspended from cranes and swung about the pits, but not where the work of pitching sand was carried on. It was while rolling a wheelbarrow of sand and in attempting to escape contact with one of the swinging vessels that the boy was by contact of his wheelbarrow with a flask thrown into a pit and hurt, with the result that one of his feet was amputated.

If under this evidence, the plaintiff; is, by implication or otherwise, chargeable with having consented to his sou’s employment in the work of pitching sand with a shovel or of rolling it in wheelbarrows, then he is further chargeable with having consented, to accept the risk naturally incident to sacli work, whether the character or source of those risks were known to him or not; but consent alone; that the boy might work as a slioveler did not carry with it the implication of consent to his working with a wheelbarrow. It is common knowledge that this vehicle, when loaded, requires for its management, greater strength than does a hand shovel, and its use in proximity to the cranes and pits of this foundry may have been to a boy of fourteen, distinctly more dangerous, than the work of shoveling. That this was so and that the boy’s employment in the work where he was injured was without the plaintiff's consent, might well have been found by the jury; and such facts, if established, were together with the evidence relating to the injury and damages, sufficient to show the defendant liable and to warrant the giving of charge 9 for the plaintiff, and the refusal of the general affirmative charge requested bv defendant. — Marbury Lumber Company v. Westbrook, 121 Ala. 179" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/marbury-lumber-co-v-westbrook-6517936?utm_source=webapp" opinion_id="6517936">121 Ala. 179.

In the refusal of the motion for a new trial, we find no ground for reversal.

Affirmed.