Pell City Manufacturing Co. v. Cosper

| Ala. | Jan 14, 1911

EVANS, J.

The complaint as originally filed contained a single count, and, on demurrer being sustained to it, the complaint was amended by the filing of an additional count numbered 2. This latter count was ■based on subdivision 1 of the employer’s liability statute (section 3910 of the Code of 1907). The injury ■complained of consisted in the loss of a part of plaintiff’s hand, and was received while he was attempting to oil a ventilator fan in the defendant’s cotton factory. The case was tried by the court below, without the intervention of a jury, on the plea of the general issue and special pleas of contributory negligence. 'There was a written request for and a special finding •of the facts made by the court, and judgment rendered in favor of plaintiff, from which the defendant appeals.

The first ■ question presented for our consideration arises out of the ruling of the court in overruling the demurrer of defendant to count No. 2.

As to the condition of the way, constituting the alleged defect, the averment of said count 2 is as follows: “That said plank on which plaintiff stepped, as above stated, was too narrow for the purpose for which it was constructed and used, and it was 18 feet above the floor of the building, and the said plank had been rendered slippery to approach said fan and was a dangerous place on which to stand when attempting to oil said fan, and plaintiff avers that said defect was the proximate cause of the said injury complained of in this complaint.” Under former decisions of this court, allegations of defect less specific than that above quoted have been held sufficient. In Jackson Lumber Co. v. Cunningham, Adm'x, 141 Ala. 213, 37 South. 445, the demurrer raised the question of the sufficiency of the allegation as to the defect complained of in the ways, works, machinery, or plant, and the court held “the count mentioned was not subject to the objections taken by demurrer.” The allegation in that case was that “the said railway from which the said engine was derailed as aforesaid was defective.” Certainly the allegation quoted from count 2 of the case sub judice is more apt in putting the defense on notice of the particular defect complained of than was the allegation last quoted from the case of Jackson Limber Co. v. Cunningham. The above criticism, together with the further suggestion that the suit is under and by virtue of a statute and not under any provision of the common law, and that the count in’ the other respects to which demurrers were filed follows the statute, we think is a sufficient answer to all the grounds of demurrer.

The court did not err in overruling defendant’s objection to the following question asked plaintiff’s witness by plaintiff: “Were you exposed to any danger in passing along there (meaning on the structures used for oiling the fan) other than by being hurt by the fan.” This was perfectly competent as the answer shows, viz.; “liable to fall off on the floor.” The floor was 18 feet below, and it was evidently the involuntary swinging of plaintiff’s hands in attempting to prevent this calamity that caused his hand to strike the fan, from which the injury resulted.

There were many other assignments of error on the rulings of the court on the introduction of evidence; but these rulings were so patently correct that we deem it unnecessary to devote time and space to the consideration of them.

Many of the assignments of error relate to exceptions reserved to the special findings of the facts by the court. Indeed, every special finding of fact was excepted to. In Chandler & Jones v. Crossland et al., 126 Ala. 176" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/chandler--jones-v-crossland-6518612?utm_source=webapp" opinion_id="6518612">126 Ala. 176, 28 South. 420, after citing the sections of the Code relating to special findings of the facts by the court and reviewing our cases on the subject,- this court, speaking through Justice Haralson, concludes by saying: “It thus appears that where a special finding, as here, has been required of the court, by the parties, this court may not go behind the facts as found by the court- to see whether or not, from the evidence introduced, it correctly found the facts. If such should be done, we fail to see the necessity for a special finding at all.”

From the rule here laid down it is plain that the assignments of error relating to the court’s special finding of facts are not to be considered; and the only matter left open for review on appeal, in this particular respect, is whether a proper judgment was rendered on the facts as found; and, if the facts so found are sufficient to support the judgment rendered, it will not he disturbed.

Upon careful examination of the facts so found, we are of opinion that they are sufficient to support the judgment.

After the conclusion of the evidence upon the trial, the court permitted the plaintiff to amend his complaint by striking out certain words. This the defendant objected to and reserved an exception to the court’s action and here assigns the same as error. There is no merit in the contention; the amendment was unquestionably allowable.

We find no error in the record, and the case is therefore affirmed.

Affirmed.

Dowdell, C. J., and Anderson and Sayre, JJ., concur.