52 So. 447 | Ala. | 1910
This is an action, by the appellee against the appellant, for damages on account of an injury to the hand received by the plaintiff as an employe
No evidence was offered by the defendant. The plaintiff testified that she was 14 years old last December; that she received the injury while cleaning the frame, and that “Jim Hudgins, section hand,” ordered her “to clean the frame when it was running”; also that she had been engaged in the work for nearly a year, that she cleaned around the cogs every day, but that she always stopped the frame before cleaning, until the day of the injury; that she was rubbing around the cogs with a piece of cotton when her hand was caught; that the cogs were all covered by a case, but she got
Jim Hudgins was examined as a witness by the plaintiff, and testified that he had not given any orders to clean the cogs; that it was dangerous to clean them when the machine was running, and against the rules to do so. Tom Pruitt, a witness for plaintiff, testified •substantially to the same effect, and also testified that a copy of the rules were printed and hung on the wall at the entrance of the spinning room, one of which is: “Cleaning of machinery must be done after stopping time. All help cautioned not to clean machinery while running, as it is dangerous.” He also testified that he had spoken to the plaintiff about the danger of cleaning while the frame was running, had told her of this danger not more than an hour before she was hurt, had seen her wiping off the frame while it was in motion, and told her to keep her hand away from the
It will be noticed that the only, evidence which has the least tendency to sustain any allegation of the complaint is the statement by the plaintiff that “Jim Hudgins, section hand,” ordered her “to clean the frame when it was running.” Whether that expression means that his order was that she should clean it while it was running, or merely that the order was given while it was running, does not clearly appear; but, however that may he, the plaintiff does not testify that he was one Avliose orders she was bound to o.bey, etc., nor that he had any superintendence, nor is there any testimony tending to show that. On the contrary, her witness, Hudgins, testified that Tom Pruitt was overseer and acting section hand, and that it was his duty to give orders to the hands. In addition, her own testimony shoAvs that she was perfectly familiar with the machine, and fully aware of the danger; and, even if such order had been given by a proper person, she should not have obeyed it. — 1 Lebatt, Master & Servant, § 438, p. 1234 et seq. See, also, as to the general liability in such cases, Mundhenke v. Oregon City Co., 47 Or. 127, 81 Pac. 977, 1 L. R. A. (N. S.) 278; Townsend v. Langles, (C. C.) 41 Fed. 919; St. Louis Cordage Co. v. Miller, 126 Fed. 495, 61 C. C. A. 477, 63 L. R. A. 551; Ennis v. Maharajah, 49 Fed. 111, 1 C. C. A. 181; Higgins Carpet Co. v. O’Keefe, 79 Fed. 900, 25 C. C. A. 220; Fones v. Phillips, 39 Ark. 17, 43 Am. Rep. 264; Moss v. Mosely, 148 Ala. 168, 41 South. 1012.
The plaintiff was guilty of contributory negligence. The court should have given the general affirmative charge, as requested by the defendant. The judgment of the court is reversed, and the cause remanded.