Dallas Manufacturing Co. v. Townes

SIMPSON, J. This is an action for damages on account of personal injuries,' by the appellee against the appellant, and this is the third time the case has been before this court. — Dallas Mfg. Co. v. Townes, 148 Ala. 146, 41 South. 988; Townes v. Dallas Mfg. Co., 154 Ala. 612, 45 South. 696. As to the action of the court in allowing the amendment to the complaint, and the effect of that amendment on the operation of the statute of limitations, section 5367, Code 1907, has set that vexed matter at rest, and under it the amendment was prop [635] erly allowed and relates back to the commencement- of the suit. It is next insisted by the appellant that the demurrers to counts 5, 6, and 8 should have been sustained, because said counts do not show any duty on the part of the defendant to furnish lights for the independent contractor to work after dark. All of the counts allege facts showing that said Saco-Pattee Machine Shop was engaged, at the time of the injury, in setting up machinery in the mill of defendant, under an arrangement between it and defendant, and that the plaintiff was there by the direction or invitation of the defendant. These expressions carry with them the conclusion that the work was being done at the time, either indicated or acquiesced in by the defendant, and the eighth count alleges specifically that the hours of work were prescribed by the defendant. There was no error in overruling the demurrers to said counts. According to the plaintiff’s own testimony there was one slat out of the carding machine, and he had been sent by the person who was over him in the employ of the “Saco-Pattee Machine Shop” to replace this slat; that, after stopping for a while to talk to Anglin, plaintiff stepped into the alley between the cards, made one or two steps, when the lights went down, and then burned up again; that he took another step or two, and had his foot in the air to make another step, and as his foot came down the light went out, and his foot struck or came down on a card door, which was lying on the floor; that he was walking with his right side to the card, and as he fell he spun around, and placed the back of his left hand against the revolving card cylinder. It appears that the cylinder, with fine wire teeth in it, revolves in one direction, and that the slats, which are outside and around it, with wire teeth in them, revolve [636] more slowly in the opposite direction. The space left open by the slat which was out was from 1 1-2 to 2 inches wide — the plaintiff saying the slat was 2 inches wide, and another witness 1 1-2 inches — -and was 3 or á feet from the floor. Plaintiff says that the card door which was lying on the floor was of iron, about 8 inches square and a quarter of an inch thick. Plaintiff says that there was nothing to prevent his seeing the door, if he had looked, before the light went out; that he would not have fallen if the door had not been there; and that he grabbed at a standard as he fell and spun around. In order to replace the slat, which plaintiff was sent to replace, he would have gone behind the machine, then come in front of it, and, after the cylinder ceased to revolve, replaced the slat. The cylinder was revolving about 170 times in a minute. Two witnesses, who went to plaintiff when they heard him cry out, testify that the belt was off and the cylinder had then stopped. There were others there, when they got there, attending to plaintiff; but they were not examined as witnesses. Plaintiff says that he did not throw the belt. Passing by the contradictions of the plaintiff statements by the other witnesses, and also the question of proximate cause, it is difficult to see how the going out of the light could have caused the plaintiff to place his foot on the door, if it went out just as his foot was coming down. Besides, it is a physical impossibility for a man, by placing his foot on (as plaintiff seems to think he did), or striking his feet against, an object a quarter of an inch above the level of the floor, to spin entirely around and place the back of the hand, which was on his opposite side from the card, against a revolving cylinder, through an aperture two or even three inches wide, and three or four feet above the floor. We think [637] the verdict should have been set aside and a new trial granted. The judgment of the court is reversed, and the judgment will be here rendered granting a new trial and remanding the cause. Reversed and remanded. Dowdell, C. J., and Denson and Mayfield, JJ., concur.