Warble v. Sulzberger Co. of America , 185 Ala. 603 ( 1914 )

McCLELLAN, J.

Action by a servant (appellant) against tbe master (appellee) for personal injuries received while performing duties under his employment. While cleaning a room, his hand came in contact with the unguarded revolving fenders of a fan used for ventilation; and two of his fingers were severed from the hand. At the request of the defendant, the court gave the general affirmative charge for the defendant. But two assignments of error are urged in brief, viz., that predicated of the overruling of demurrer to special plea 12, and that based upon the giving of the affirmative charge as stated.

The judgment entry recites a ruling on demurrer to plea 12; but there is, in this record, no demurrer to that plea. There is a demurrer to special plea 11 set out in the record; but no recital in the judgment entry of a ruling on demurrer to plea 11. There is a reference, on the margin of the record, doubtless made by the clerk to demurrer to plea 12, but the pleading against which the marginal reference is made takes no account of plea 12. That demurrer is addressed to plea 11. The question argued in brief for appellant cannot be considered in this state of the transcript.

For two reasons error cannot be pronounced of the action of the court in giving the affirmative charge. First. While the bill recites that it contains all the evidence adduced, the bill affirmatively shows that a view was taken by court and jury of the scene and means of plaintiff’s injury, and a demonstration was then given court and jury, by plaintiff, of the way in which he was hurt, giving his position, the position of the piece of paper which he was, when injured, engaged in removing, and his own various motions and movements; the fan being at rest when he made the demonstration. Manifestly this court has not before it the full evidential data the trial court had before it. Under such circumstances, we must apply the pertinent rule soundly announced by the Court of Appeals in Sloss-Sheffield Co. v. Redd, 6 Ala. App. 404, 60 South. 468, 470. Second. The plaintiff’s own testimony shows that he, a boy. a little over 15 years of age, whose possession of average intelligence for his years is not questioned in the evidence, was familiar with the dangerous quality of this revolving fan if the hand was brought even near to it; that he had seen it started, in motion, and stopped, and knew of its effect to create, when in motion, a suction; and that to put the hand within the circle of its revolution would cause injury. Under the pertinent doctrine of Brammer v. Pettyjohn, 154 Ala. 616, 45 South. 646, and cases therein cited, the plaintiff could not recover. He was the victim of his own manifest carelessness. His conduct, with reference to the prudence affirmative knowledge should have suggested to him, can alone be measured by that of the ordinary minor of his years, so informed, and presumed average degree of intelligence. If other jurisdictions sanction a different standard, this court cannot look with favor upon their conclusions.

The judgment is affirmed.

Affirmed.

Anderson, Sayre, and Somerville, JJ., concur.