Riley v. Chancey Bros.

*177 SAYRE, J. As appears in tbe complaint, appellant’s intestate was digging a well for appellees when tbe earth fell in upon him, causing his death. Appellant’s effort was to state a cause of action under tbe first subdivision of section 7598 of tbe Code, the Employers’ Liability Act. Her case is conceived to have been most strongly stated in count D of tbe complaint, and we may confine our observations to that count. Tbe subdivision employs this language: “When tbe injury is caused by reason of any defect in the condition of tbe ways, works, machinery, or plant connected with, or used in the business of the master or employer.” Describing the defect which brought about tbe death of intestate, tbe count speaks thus: ‘‘The dirt, mud or earth from said well was hauled up out of said well by means of a windlass and crank with a rope and pulley, that said windlass and crank was supported on one end by means of a brace or braces, and was supported on the other end by a pine tree standing at or near the brink of said well; that said windlass, crank, and supports or braces were a part of the ways, works, machinery, or plant of the defendants, and that said windlass, crank, supports, or braces were defective, in that one of the supports or braces was a pine tree growing on the brink of said well with its roots extending down into the earth on the edge of said well for several feet, and that the vibration of said windlass so attached to or connected with said tree, as the earth, dirt, or mud was hauled up out of said well, caused the earth around and about the roots of said tree to become loose and fall in upon plaintiff’s intestate.” Demurrer to tbe complaint and its several counts was sustained, whereupon plaintiff took a nonsuit and bas appealed, as provided by section 6431 of tbe Code. Of course, tbe windlass, including tbe supports for tbe horizontal beam or barrel around which tbe hoisting rope was wound, was a temporary contrivance designed for use in digging tbe well, no less so because the contriver made use of tbe tree standing on the brink of tbe well being dug for use in connection with tbe business of defendants. Tbe contrivance may have been' unfit for tbe purpose for which it was used, but that does not imply liability under tbe statute unless it was a part of tbe ways, works, machinery, or plant connected with or used in tbe business of defendant. The well was intended so to be used, but it was incomplete. It was still nothing but a bole in tbe ground, unsuited, as we may reasonably assume, for any use in connection with defendant’s business. The windlass and tbe well were but parts of a temporary structure — if we may speak of a well as a structure — and it follows from tbe interpretation of tbe statute which bas prevailed here and elsewhere that tbe windlass was not any part of tbe way, works, machinery, or plant connected with or used in tbe business of defendant. Tbe count on its face discloses that lack of permanency in tbe contrivance complained of which takes it without tbe statute. Gulf States Steel Co. v. Jones, 203 Ala. 450, 83 So. 356, 23 A. L. R. 702; Corona Coal Co. v. Davis, 208 Ala. 358, 94 So. 532; Woodward Iron Co. v. Wade, 192 Ala. 651, 68 So. 1008. Tbe complaint alleges by way of conclusion that tbe “windlass, crank, and supports or braces were, a part of tbe ways, works, machinery, or plant of tbe defendants,” and that allegation, standing alone, would suffice under some of tbe earlier authorities to bring appellant’s case under tbe statute; but the further and more particular facts shown by tbe complaint disclose tbe lack of permanency in tbe arrangement for tbe digging of tbe well and serve to bring tbe case under tbe influence of tbe authorities last cited. Judgment affirmed. GARDNER, BOULDIN, and BROWN, JJ„ concur.