Ritch v. Kilby Frog & Switch Co.

MAYFIELD, J. Counts 4, 5, 6, and 8 were each bad, in that they showed no causal connection between the defect or the negligence complained of and the injury suffered; that is, they complained of certain ■ defects as to the location of the furnace, .etc., and negligence in so locating it, and yet failed to show that, if this defect complained of had any connection with the injury complained of, it was the indirect and remote, and not the direct or proximate, cause, which, of course, is necessary to state a good cause of action. None of these counts sufficiently showed a duty owed by defendant, to plaintiff or to any of its employes, to change the location of the furnace as complained of. Moreover, a fault of each of these counts is that the averments of each show that one defect or negligent act is alleged as the basis for the cause of action, yet it is affirmatively shown by the allegations of each count-that the injury complained of was not proximately caused by this particular defect or negligence relied upon. The demurrers went to this defect as to each of the counts, and were therefore properly sustained.— Gross’ Case, 97 Ala. 221, 12 South. 36; Vail’s Case, 142 Ala. 135, 38 South. 124, 110 Am. St. Rep. 23; Dresser’s Employer’s Liability, p. 422. [139] The case was tried upon counts 1, 2, 3, and -7. The first three counts each declared under subdivision 1 of the employer’s liability act (Code 1907, § 3910), as for a defective ladder generally, that it was too short, and that it was too weak; the seventh, under subdivision 2, as for negligence of the superintendent, while in the exercise of superintendence, in locating a furnace, so that it necessitated plaintiff to mount a ladder on the wrong side of the shaft, toward which it was revolving.- The general issue and pleas of contributory negligence and assumption of risk were filed to each of these counts, and the trial was had upon these issues, and the court gave the general affirmative charge for the defendant, which necessarily raises the most serious and important question for review on this appeal. We are of the opinion that the trial court was correct in giving the affirmative charge requested for the defendant, under all the evidence as applied to the issues raised by the pleadings and the law applicable to such cases. Whatever may be said as to the sufficiency of the complaint, and each count thereof, and as to the pleas as to which demurrers were overruled, some of these pleas, which were answers to each count, were proven by all the evidence. Even the plaintiff’s evidence established the truth of some of these pleas. . All the evidence conclusively showed that plaintiff had assumed the risk by virtue of his employment, and that his injury was incident to the risk he assumed; that the injury was the result of an accident naturally incident to the employment, if performed in the manner in which plaintiff voluntarily performed this. All the evidence, including that of plaintiff himself, shows that the injury was directly and proximately caused by his own negligence, and that, if any negligence for which defendant was liable was shown, it was shown [140] not to have been the direct or proximate cause of the injury, but the remote — if it had anything at all to do with it. The evidence conclusively shows that the plaintiff was injured while attempting to replace a belt on a pulley from which it had slipped off, and while it was revolving very fast, from 100 to 200 revolutions per minute. All the evidence shows that this act was necessarily attended with more or less danger. Even the plaintiff himself so testified; and it is a fact which, it seems, everybody knows, that to thus attempt this dangerous act was negligence. As to this the evidence leaves no room for doubt, and in the absence of wanton or subsequent negligence on the part of defendant, of course, there could and should be no recovery. There is also another principle of law which, applied to the evidence and issues of this case, will prevent a recovery by the plaintiff. The evidence without conflict shows that the safer way to belt the pulley in question was to slow down the movement of the machinery and then replace the belt, instead of attempting to replace it while the machinery was running at full speed. It also appears that plaintiff knew of these two modes, and well knew that the latter Was safer and less dangerous than the former; yet he, with full knowledge of all the facts and with 17 years’ experience in the business, chose the more dangerous mode of performing the work. It was no excuse to say that he had no absolute authority to order the machinery stopped or slowed down, to perform this act. He did have the right, and it was his duty, to request it to be done, and then, if his request had been refused, there might be some show or color of excuse for the attempt to put on the band while the pulley was revolving so fast; but surely he cannot excuse himself after his failure to make the request or to attempt to have the machinery slowed down. [141] The whole truth is (which is shoivn by the evidence) the plaintiff was an expert at this business, and thought, he could put the band on without injury under any circumstances, and, emboldened by his long experience and practice in the matter, he attempted what an ordinarily prudent man would not have essayed, and was injured in the attempt. It was the unexpected that happened. He thought his practice, knowledge, and dexterity would avoid the usual danger attending the putting on of the belt under the existing circumstances. But the unexpected happened, “the gun was loaded,” and he was injured solely as the result-of his own risk or negligence. The plaintiff thus sums up the whole matter in his re-direct examination: “The danger in attempting to belt a pulley while the shaft is in motion is the danger of getting entangled in the pulley. I was not injured in that way. I never saw a ladder get caught in the pulley and crushed in as this one was. I never heard of one. I avoided the danger of being entangled in the pulley. That was the danger I had in mind when I went up there, and was the open danger.” The case of Coosa Mfg. Co. v. Williams, 133 Ala. 606, 32 South. 232, is decisive of the rights of plaintiff to recover in this case. The facts, of course, in the two cases are not identical; but they are so nearly alike that the principles of law announced in that case preclude any right to a recovery under the undisputed facts in this case. While no new doctrines are announced in that case, they being as old as the law of master and servant, yet the doctrines are there forcefully and tersely expressed, and applied to facts very similar to the facts of this case. We can do no better here than to quote what McClellan, C. J., said in that case, only changing the names of the parties, and to say it must be applied to the facts in this case, and that, when so [142] applied, it supports the charge of the court and the verdict qf the jury: “The plaintiff was an experienced millman. He had worked for a long time in the mill in which his injuries were received, and at the time of receiving them he was, and had for months been, the foreman of that section of the mill in which he was injured. He knew all about belting pulleys in motion. If there was danger in attempting to belt the pulley he was engaged in belting at the time of his injury, while it was in motion, he knew of that danger, its character and extent, fully as well as Clark, defendant’s superintendent, and that danger, certainly to a man of his ac knowledged experience and familiarity with the matter in hand and the environment, was an obvious danger. So that, on the assumption upon which we are now proceeding, the plaintiff was under no duty to subject himself to this danger at the command of Clark, the superintendent, and his doing so was want of due care and and prudence — such . negligence, contributing to his own hurt, as to constitute a full defense against the alleged negligence of Clark in directing him to belt the revolving pulley.” It is unnecessary to consider other rulings of the court upon the evidence, for the reason that it clearly appears that under all the evidence admitted, offered, or excluded, and under all phases of it, the general affirmative charge was properly given, as requested for defendant. The judgment of the circuit court is affirmed. Affirmed. Simpson, Anderson, and McClellan, JJ., concur.