Riddle v. Bessemer Soil Pipe Co. , 170 Ala. 559 ( 1911 )

McCLELLAN, J.-

Action for personal injuries, by the servant (appellant) against the master, suffered, it is alleged, while in the performance, of his duty. There were five counts in the complaint. The plaintiff was a common laborer at defendant’s plant. He was directed by Saunders, his superior, to dress or. grease a then running belt. To do this a substance, molded in the form of a stick about six inches long, was usually held against the running belt, and the friction created would wear down the stick and besmear the belt, and thereby avoid its slipping on the pulleys. In conforming to the order to dress or grease the belt, the plaintiff’s hand was drawn between a pulley and the running belt, and bis forearm and band were injured. Count 1 declared on tbe breach of tbe common-law duty to furnish tbe plaintiff with a reasonably safe place in which to work. Count 5 was drawn under tbe first subdivision of tbe liability act (Code 1907, § 3910). Counts 2 and 3 were drawn under subdivision 3, and count 4 under subdivision 2, of that act. Tbe court affirmatively charged tbe jury agaiust a recovery on either tbe first or tbe fifth count.

Taking the evidence for tbe plaintiff in its most favorable (to him) light, it appears clear, we think, that tbe sole possible lead to a recovery by him must be found, if at all, under the allegations of the fifth count. According to that phase of the evidence, his injury was the result of the sticking of the “dressing” to the belt and the carrying thereby of his hand betwen the belt and the pulley, upon the principle of the ordinary clothes wringer. The conclusion is unavoidable, as we view it, that the adhesion of the “dressing” to the belt was, in the legal sense, the proximate, efficient cause of the injury. Without such adhesion the injury would not have occurred. The place from which the application of the dressing to the belt was made by the plaintiff was, at most, but a condition upon which the adhesion of the dressing to the belt operated to produce the harmful result. The purpose and effect of dressing the belt with the substance used on this occasion was to prevent the belt from slipping on the pulley. In other words, that the dressing, when applied to the belt, afforded a measure of friction, avoiding slipping, between the belt and the pulley. The plaintiff was entirely familiar with the method, purpose, and effect oí the operation. He had been two years in the service of the defendant, and had at least twice dressed this belt when it was running, and had seen others do so, and bad himself several times dressed it when stationary. Tbis experience and familiarity with tbe operation of dressing tbe belt, coupled with tbe presumed possession by bim of tbe prudence and foresight of tbe reasonably prudent man, likewise experienced and acquainted with tbe premises, requires tbe imputation to bim of tbe reasonably to be anticipated result of undertaknig to render tbe service, as and when be did, unless negligence may be ascribed to tbe defendant, as upon tbe theory and averments of count 5, in tbe particular that tbe “dressing stick,” a part of the defendant’s plant, was defective, in that when properly brought in contact with tbe running belt, it adhered to tbe belt.

It must be conceded that tbe substance, commonly used in dressing tbe belt, was a part of the “plant” of the defendant.—S. S. S. & I. Co. v. Mobley, 139 Ala. 425, 36 South. 181; Going v. Ala. S. & W. Co., 141 Ala. 537, 37 South. 784; Huyck v. McNerney, 163 Ala. 244, 50 South. 926. The evidence shows, without room for doubt, that ordinarily, usually, warm weather (tbis occurred August 28, 1909) softened tbe dressing. There is an entire want of evidence, or reasonable inference therefrom, that defendant or its representatives knew that tbe “stick” of dressing attempted to be used by plaintiff bad become hardened, and therefore gummy. There is an entire want of evidence, or reasonable inference therefrom, tending to show dereliction on tbe part of defendant’s representatives in respect of tbe discovery of tbe alleged hardened condition of tbis “stick” of dressing. On tbe contrary, tbe common effect of warm weather upon tbe substance used for dressing tbe belt justified, as far as tbis record discloses, the defendant’s representatives in assuming that tbe substance was softened, as usual, at that season. There is a suggestion in tbe evidence that, when broken, a “stick” of the dressing would dry out and barden as the result of the effect of air upon it; but it nowhere appears from the evidence that this “stick” belonged to that class. However, if so it did appear, there was an entire absence of evidence, that plaintiff’s superiors knew the fact, or that proper care and diligence required that it be ascertained. Negligence, in the sense of affording basis for recovery under the -first subdivision of the liability act (Code, § 3910), does not exist “unless the defect * * * arose from, or had not been discovered or remedied owing to, the negligence” of the master, or of some person in the service of the master intrusted with the duty of seeing that the ways, etc., were in proper condition. An essential averment to that end must be supported in the evidence.—T. C., I. & R. Co. v. Harmes, 167 Ala. 247, 52 South. 827. The affirmative charge was properly given for defendant as to the fifth count.

As indicated, the plaintiff could not recover under any of the theories of liability expressed in counts 2 to 4, inclusive.

As to count 1, we find no evidence to support material averments in it. The plaintiff himself testified that he did not think it was dangerous “to grease it as (he) did.” In any aspect of the case made by the evidence, however favorably to plaintiff, considered, the plaintiff was not entitled to recover; so that errors (if so) intervening on this trial below were without injury to him.

The judgment is affirmed.

Affirmed.

. Dowdell, O. J., and Simpson and Mayfield, JJ., concur.