88 So. 155 | Ala. | 1921
When considering the general charge requested and refused, the question of the weight of the evidence is not before the court in the absence of a motion for a new trial predicated thereon. It is only whether the tendency of evidence and reasonable inferences to be deduced therefrom were sufficient to warrant a submission on the facts to the jury under the pleading. McMillan v. Aiken,
The plaintiff was assisting four other employees in trucking a steel die from defendant's forge through its blacksmith and machine shop, under the direct supervision of his immediate superintendent (of defendant), who had charge of and directed the operation and the way; and when they came to the door of the blacksmith shop there was an obstruction of a rubber air hose stretching about four feet from the floor and across the path along which they were rolling the truck carrying said steel die. Plaintiff's evidence shows that, seeing this obstruction, they "stopped and some one mentioned moving it," and to this suggestion the superintendent in charge (Mr. Jones), to whose orders plaintiff was compelled to conform in the discharge of the duties of his employment, and at which he was then engaged, said to plaintiff and associates "to go over [under] it," meaning over the doorway and under the hose; "if you can't, * * * get off of your job." Plaintiff's account of the locus in quo and cause of his injury was: "He said go under it. I started it, and just as I got in a stooping position to go under it, and started to pulling, there was a bolt there about the color of the cinders. I never saw it until the wheel [of the truck being drawn] struck it and jerked my shoulder against the door," inflicting the injuries of which complaint is made. That in pulling the "horns of the truck" he was naturally stooping and looking down toward the ground, more or less on the path over which they were pulling the truck under the hose. That the bolt was a brown color, the color of iron. That the cinders were a light gray color. That he did not know when the bolt was put there and did not know it was in the path until the truck struck it, and did not know whether Mr. Jones saw it in the path before it was struck. S.-S. S. I. Co. v. Brooks,
Under the third count there was testimony tending to show that Mr. Jack Jenkins was foreman in the shop or place where plaintiff received his injury, who testified that it was his duty to supervise the condition and ways in the shops, to see that everything was in its place; "to superintend the grounds and mechanism and everything in connection with these shops;" that the foreman, Jones, had authority to move the die, and of the ways and means to attain that end; that it was plaintiff's duty to "obey him"; and that said foreman always put four or five men to moving such dies. The witness said: "Of course, * * * they have to be careful to keep one end from flying up, *324
and the die from rolling off. The die has that tendency while it is being moved." That running over an obstruction would not throw it out of balance, but it would throw the die to one side. That "there is nothing in the movement of the car to injure a man that I know of; that is, [if] there is no obstruction or anything like that. * * * If the wheels struck an obstruction, it would cause the car to fly around, * * * due to the weight and the motion of the truck." That the pathway along which plaintiff and his associates, under the immediate foremanship of Mr. Jones, were moving the die, was well known to Foreman Jenkins, who was the general foreman. That it was the path for the purpose of moving dies to the machine shop. That there was no obstruction "unless something got in the way; something might get in the way." That he did not know of the hose being stretched across the south door at the time Franks was injured, but he did know that at times such hose was used across that door and pathway. A consideration of all the evidence shows that it was insufficient to submit the third count to the jury (Woodward Iron Co. v. Boswell,
The third and sixth counts were not subject to demurrer. Ala. Fuel Iron Co. v. Minyard,
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.