47 So. 593 | Ala. | 1908
— The defendant (appellant) was engaged at the time of plaintiff’s injury in the construction of a building, and to facilitate the raising of material therefor operated an elevator or hoist in a skeleton shaft parallel with and within about 3 feet of "the wall of the building. McDaniels was foreman of the stone work and Rogers was foreman of the concrete work on the structure. The plaintiff was under the supervision and orders of McDániels, who directed plaintiff to ascend the shaft and from a rest oh the lateral timbers of the shaft and next the wall to assist in setting a large stone. The elevator appears'to have occupied in its operation practically the full space-with
The complaint, as noAv important to be stated, sought to fix liability on the appellant by the application of subdivisions 2, 3, and 4 of the liability act (Acts 1907, p. 595, 596, c. 80, § 3910), and Avould predicate that liability only upon the alleged negligence of Bogers in giving the order to the elevator operator to loAver it while plaintiff aaus thus exposed to injury if the order AA’as obeyed. There is no count in the complaint as-scribing, as disclosed by the evidence, the proximate cause of the injury to any source other than to Bogers’ alleged negligence in directing the elevator to be lOAvered, though of course this basic idea, is undertaken to. be brought in averment Avithin the subdivisions stated. Negligence must arise out of a breach of duty, and hence .the obligation assumed by the plaintiff, on his present .pleading, Avas to shoAv'a duty on Bogers, and which- was •breached by him to plaintiff’s injury as a proximate consequence, ás and when Bogers gave Torbett the signal to loAver the hoist. Necessarily the duty relied bn is that. Borers should have, before signaling to Torbett, taken the precaution to seé that no employe was in or on
Can the existence of the duty on Rogers be found in the character of the mechanism and its general purpose and use in the construction of this building? We think not. The testimony rather minutely describes the character of the shaft. It was composed of four posts or uprights, and these were braced by lateral pieces, parallel with the ground, at intervals of 8 or 10 feet; the square spaces between these laterals being twice cut by pieces running from opposite corners and crossing in the middle at an approximate distance of 4 or 5 feet from the laterals mentioned. These bracings appear to havi been made of 2x4 or 4x6 inch timbers. It is apparent that the shaft was not suited or designed for use as a means of ascent or descent by climbing. In fact, the evidence shows that the shaft was not at all adapted to scaffold purposes for work on the exterior of the nearby wall as appears to have been undertaken to be done when plaintiff was sent, by his superior to a place on it 8 or 10 feet from the ground. Furthermore, the evidence indicates a very constant use of the hoist in the shaft, which, in passing, cleared by only a few inches the
It follows that, no duty being breached in giving the order or signal to lower the hoist, there was no culpable negligence on the part of Rogers. The affirmative charge for the defendant should have been given. The judgment is therefore reAmrsed, and the cause is remanded.
Reversed and remanded.