67 So. 378 | Ala. | 1914
The fourth count is wholly without support in the evidence as to its material specification that the- said Holstun permitted and allowed plaintiff to work on or about said elevator, with a knowledge (by Holstun) of its defective condition. There is nothing to suggest such knoAvledge by Holstun.
The fifth and sixth counts are also wholly without support in the evidence as to their conjunctive and cumulative specifications that the wheel or casting Avas old and worn; that the pin was old and worn; and that the pin Avas insufficient in strength to support the elevator. On the contrary, the undisputed evidence is that, although old in use, they were not worn; and also that the pin Avas in perfect condition and sufficient for its purpose.
The seventh count is without support in the evidence as to its main allegation; viz., that Bob Harrison Avas superintendent of the elevator.
As to all of these counts it is clear that the general affirmative charge for the defendant was properly given.
The plaintiff’s witness Collins, an expert machinist, testified that, if such a pin as this, used as shown, had become loose “in my opinion, that condition would have been apparent by reasonable inspection of the machinery of the elevator. It would have been apparent to inspection previous to the time it came out; you would have been able to detect it being loose. I could not say for how long before it came out. After it worked loose it may have worked out in five minutes, and it may have been a day or two coming out altogether.”
Both of the plaintiff’s expert witnesses, Collins and Cochran, testified to the effect that such a pin might be perfectly fitted, properly driven, and still work loose in time from constant use; but they expressed the opinion that, if tight and well fitted, it would not jump out all at once by reason of a sudden jar.
The defendant insists that it has fully met this inferable requirement, as shown by the uncontradicted testimony of its superintendent Kane, who said (omitting redundant phrases) : “I had that elevator under inspection. I see the elevator I suppose a dozen times a day, and I start a man to handling bales down on it in the morning, * * '* and I go there and look at it. I did the same thing there that morning; I got there and looked at it. I would stand on the second floor * * away from the hole of the elevator about six feet, and you see this hub and gear and pin all the time; it isn’t ever out of sight. I did that that morning. When I looked at it it was just like it always had been in there in its place, I did not observe anything wrong with it. I had inspected it prior to that time every day I see the elevator. I looked up at those works every day probably a dozen times, and could see if there was anything the matter while I looked at them. I should say that I never missed a day without looking up there and looking at the works.”
On cross-examination this witness said: “I am not a mechanic; I am a bleacher, finisher, dyer, and work around chemistry some. * * * I said I went by there and looked at that elevator a dozen times a day. I did not go by the.elevator just for that purpose; in passing through and going through about my business I always looked up there. There wasn’t anything in the
So far as the frequency of Kane’s inspection of the /elevator is concerned, there can be no question of its sufficiency. See 1 Labatt on Master and Servant, § 158, and cases cited. With respect to the nature of this inspection, Mr. Labatt epitomizes the law as follows: “The character of the inspection Avhich the master is bound to make is described by various epithets and phrases, all of which, as will be seen from the subjoined note, are essentially the logical equivalent of the proposition that the examination must be such as a person of ordinary prudence would have made under the circumstances. The question whether the examination to which the instrumentality which caused the injury was actually subjected before the accident was such as to satisfy the standard thus indicated is primarily one for the jury. * * * Whether or not the duty of a master with regard to proper inspection has been performed by the application of any given test is to be determined by considering whether that test will give indications as to the actual condition of the instrumentality in question. In the application of this principle the courts have usually proceeded upon the theory that a merely visual or ocular inspection of external conditions does not satisfy the full measure of a master’s obligations, where the servant’s safety depends upon the soundness of the material of Avhich an instrumentality is composed, or upon the firmness AAÚth Avhich the separate parts of an instrumentality are attached to each other, or upon the stability of some heavy substance.” —1 Labatt on M. & S., § 161.
We deem it unnecessary to review the numerous assignments of error relating to rulings on the evidence. For the error noted, the judgment will be reversed, and the cause remanded.
Keversed and remanded.