Going v. Alabama Steel & Wire Co.

Me CLELLAN, O. J. On the trial below, all the facts and circumstances bearing and attendant upon the infliction of the injury upon the plaintiff for which redress is sought in this action were fully developed and set forth in the evidence. The plaintiff himself testified affirmatively to receiving the injury, to the environment of the occurrence -and to all its concomitants and pertinent antecedents, to its cause and to the manner of its causation. To assume that, with the pleadings other than they were when the trial was entered upon and during its progress the plaintiff and the other witnesses would have testified to any other facts than those to which they did depose, would be to assume either thai they testified falsely on this trial or that they would have testified falsely had the issues tendered by counts A, B and C, which went out on demurrers sustained, been in the. case, for no- other or different facts than those which were testified to could have been testified to by the. plaintiff and the other witnesses with any degree of consistence with the testimony they affirmatively gave on the trial. No such assumption should or can be indulged; and we are not only authorized but bound to proceed upon the contrary theory that the testimony — 547 — actually adduced covered the whole of the occurrence and every material fact bearing upon it to the exclusion of the possibility of proof of other facts pertinent to the issues tendered by those counts. So considering the case, it is clear beyond controversy that there was and could have been no evidence in support of either of those counts, and, of necessary consequence, that the ruling? of the court sustaining demurrers to them, whether erroneous or not, involved no injury to the plaintiff. The facts of the case negative the material averment in each of these counts as to plaintiff’s ignorance and inexperience in respect of the operation of the machine which injured him and as to the dangers incident thereto; as to his incapacity to appreciate1 such dangers and avoid injury from them. — Worthington & Co. v. Goforth, pro ami, 124 Ala. 656; Levy v. Bigelow, (Ind. App.) 34 N. E. 128. The case was tried on count D which avers that plaintiff’s “injury was caused .by reason of a defect in the condition of the ways, works, machinery or plant of the defendant * in this, that the machine which plaintiff was operating as aforesaid was not equipped with a reasonably sufficient appliance for the proper control and operation of said belting on said machinery, hv reason whereof the belting would get out of place and suddenly and unexpectedly start said machinery,” etc., etc. The machinery in question was a steel drill press, or machine for drilling holes through steel or iron bars and the like. Plaintiff was in control of it. Hisi duties included that of stopping the machine and taking out for that-purpose and sharpening the drill when necessary. A proper way to stop the machine was to.shift the belting which operated it from the pulley fixed to a shaft which gave motion to the machine onto a loose pulley on the same shaft, beside the other but not fixed to the shaft, so that its revolutions did not move the shaft. To prevent the belting from working back onto the fixed pulley while it was desired to keep the machine motionless, it was necessary to insert a small flat stick between a peg on the “shifter” — a sort of lever by which the belt was changed from one pulley to the other — and — 548 — tlie body of the press. This small flat stick when properly notched and the notch fitted around thei peg would safely secure the belting on the loose pulley, and without the notch it was liable to be shaken out of position by the vibration of the machinery, and thereupon the belting would work back onto the tight pulley and start the machine. The theory of plaintiff’s case is that having occasion to stop the machine to sharpen the drill point, he shifted the belt to the loose pulley and sought to secure it there by inserting the flat stick which defendant had provided for that purpose, but which had no notch in it, and was therefore an unfit and, in that sens?', a defective appliance for that purpose, that because of such unfitness or defective condition the stick was shaken out. of place, thereby allowing the belt to run back onto the tight pulley and start the machine, and that the motion thus imparted to the machine inflicted his injuries. There was evidence tending to support the facts underlying tliis theory. In our opinion these facts prima, fade presented a cause of action. The appliance for securing the belting. — the little flat stick — was a part of the plant of the defendant; and its inadequacy or ina-daptability to the end for which it was to be employed was a defect in the condition of defendant’s plant. The duty of supplying a proper appliance was upon the defendant, and the fact that only this defective one was at hand showed prima facie, defendant’s negligence in that regard. —Sloss-Sheffield Steel & Iron Co. v. Mobley, Admx. 139 Ala. 425, 434, 487. The pleas were the general issue, contributory negligence, and assumption of risk by plaintiff. There was evidence for defendant teuding to show that the injury did not result from the defect in the appliance for securing the bell on the loose pulley. The general issue w"s, therefore, for the jury’s determination. This conclusion involves the. further one which we have, indicated above that there was evidence before the jury tending to' show negligence on the part of the defendant in not providing a proper appliance for keeping the belt on the loose pulley while the machine was intended to be still. And it follows not only that the affirmative charge for — 549 — defendant could not have been properly given on the general issue, but also-, that charge C, requested by the defendant, should not have been given. We are unable to affirm as a matter of law that plaintiff was guilty of negligence' in using the defective appliance, even though it appears that to his knowledge this sort of appliance had failed on one or two occasions to accomplish the end its use was intended to accomplish. Being supplied by the defendant for that use, as the jury had the right to find, or at least being reasonably supposed by him to have been supplied by the defendant for that use, as the jury had a right to find, and the defendant being negligent, either in supplying this appliance or in not supplying a proper one, the question whether he was guilty of negligence in using it was, under all the circumstances, for the jury: It was not encumbent on the plaintiff to have and exercise the ingenuitv required to devise and make a proper appliance, and it may never Lave occurred to him tlmt a stick, with a notch in it to fit around the peg in the shifter was the appliance which the situation required. Upon like considerations in connection with plaintiff’s testimony that he informed defendant’s superintendent that the machine would start when not so intended, and that the superintendent said he would have it fixed; we are further of opinion that the issue of assumption of risk cel non was for the determination of the jury. So that on no issue in the case was the defendant entitled to the affirmative charge, and so that also the court’s error in giving charge c, cannot be said to have been without injury to the plaintiff. Charge a; given for defendant is bad in that it assumes that plaintiff allowed his finger to come in contact with the end of the drill. Charge e; was of doubtful propriety, to say the least. The usage and custom of well regulated shops to have no set screws in the handles of shifters attached to drill presses is a pertinent fact on the inquiry of negligence vel non in omitting such screws, but it is not conclusive. A shop may be well regulated, and yet not perfectly regulated and equipped. Very many are well regulated, — 550 — doubtless — most of them perhaps — but probably very few, if any, exhibit all the care and caution which due diligence and prudence enjoin in the construction and equipment of their ways, works, machinery and plant. So it does not necessarily follow, as this charge in effect declares, that nothing done or omitted in them in the way of construction and equipment involves negligence. The employment of the word “probable” as in charge “d” is not commendable: The hypothesis should have been upon the “reasonable satisfaction” of the jury, or, “if the jury is reasonably satisfied.” The 10th plea alleges facts which would be appropriate to a plea of assumption of risk, but which are not apt in a plea of contributory negligence, which is the conclusion drawn from the facts stated. This objection was not taken by the demurrer. The plea avers that plaintiff had full knowledge of the facts and conditions alleged in the complaint. Those facts and conditions pertained to the defect in the appliance for securing the belt on the loose pulley and embrace both the inadequacy of the appliance and the dangerous consequences of using it. The averment is therefore, essentially to the effect that plaintiff knew the danger of the situation. The further averment that with such knowledge he remained at the work for an unreasonable- length of time, is the equivalent to saying that a reasonable man, i. e., a man of ordinary care and prudence, would not have so remained. The court did not err in overruling the demurrer to this plea. If it should be made to appear.1 in any way on another trial that the severance of a finger in the way plaintiff testified his finger was severed would leave the severed part in a' certain condition or of a certain aspect‘differing from the condition or aspect of the part if drilled, cut or mashed off by the point of the drill, the dismembered part should be received in evidence. We will not dis.cuss the question which arose in respect of the stenographic report of the plaintiff’s testimony, as it need not occur again. There was no error in excluding the proposed testimony of the witness Webb, that after the injury to- plain — 551 — tiff some other appliance for securing the belt was used. As an independent fact to prove negligence in using th'e fiat stick at the time of the accident the fact was not competent, and the witness had not testified on his direct examination to any fact or opinion which could form a predicate for this proposed evidence on his cross examination. Had he testified in chief that this piece of wood was in his opinion a safe and proper appliance, he might have been ashed on cross-examination, for the purpose of abating the probative force and value of his (/pinion, whether he had not substituted another appliance after plaintiff’» injury; but the evidence is not offered in any such connection or for any such purpose. Frierson et al. v. Frazier, (MS.) 37 South. — There is nothing in the case of Louisville & Nashville, R. R. Co. v. Malone, 109 Ala. 509, opposed to this Anew. To- the contrary that case is in line with and supports the conclusion we reach here, lieversed and remanded. Haralson, Dowdell and Denson, J.J., concurring.