133 Ala. 580 | Ala. | 1901
This suit is prosecuted by Melton against the Lumber Co. Plaintiff seeks to recover ■damages for personal injuries alleged to have been sustained by him through the negligence of the defendant, or of an employe of defendant for whose negligence defendant is supposed to be responsible. The complaint in its forepart alleges that the injuries were “caused by the reason of the negligence of persons in the service or employment of the defendant to whose orders Or directions the plaintiff as employe at the time of the injury was bound to conform and did conform, and such injuries resulted from his having so conformed to said orders and directions;” but in its after part the complaint sets up that plaintiff’s injuries were,sustained in consequence of the failure of one Jones, another employe of defendant, a person to whose orders plaintiff was bound' to
The plaintiff with thirty or forty other laborers was in the employment of defendant and engaged under Jones as foreman or superintendent in clearing the trees, etc. from a railway right of way and constructing a roadbed thereon. He was deaf, but his sight was unimpaired. He of course knew, for he had been there several days while that work was going on, that trees -were being felled all the time where he was working. Jones was under no duty to tell him that this was being done: He knew it as well as Jones did. The danger incident to the felling of trees is of course perfectly obvious, and Jones was under no duty to warn him as to it: He could see and appreciate that as well as Jones could. The fact that he was deaf did not impose any duty upon Jones to warn him of dangers whose presence addressed itself to his unimpaired sense of sight, but rather emphasized his own duty of greater vigilance in the use of that sense. But, as matter of fact, Jones did take cognizance of his infirmity of hearing and out of abundance of caution put him to work with Seals, an acquaintance and friend of the plaintiff, and wdio would converse with him by the use of the finger-alphabet, while Jones could not, and charged Seals not to let him get hurt in any way. Seals was working with him at the time of the injury, and he did all that was possible to save him from the falling tree by pushing him both to call his attention to 'the dan
Affirmed.