The Montgomery advertiser., 1905-01-28
GOING. pro ami v. ALABAMA STEEL

T - l & WIRE c.
 Action for Personal njuries.--Appea from Birmingham City Court.
 | l. Demurrer; when ruling on. vii
 not be revised.--when the facts in tho case, negative the material averments | In certain counts of a complaint, the
 ruling of the trial court sustaining de- murrers to these counts. whether er- | rcneous or not, involve no injury to the plaintiff.
 2. Defect in plant; what sufficient to make out prima facie cause of action for.--In an action to recover damages for personal injuries. alleged in the complaint to have resulted from the negligence of defendant in not supply sng proper appliances for operating its plant, where the injury is shown to have been inflicted by a drill press,
 of which the plaintiff was in charge, and was using, and the proper way to stop the machine, when necessary, was to shift the belting which operated it fl om the pulley fixed to a shaft, which gave motion to the machine. on to a loose pulley on the same shaft: and lit Is further shown that to prevent the belt from slipping back on to the fixed pulley. it was necessary to insert a small flat stick between the peg on the shifter and the body of the press: and that if properly notched and the notch fitted around the peg the stick would safely secure the belting on the loose pulley, and without the notch 1t was
 liable to be shaken out of position by the vibration of the machine, and allow the machine to start suddenly; and there is evidence tending to show
 that the stick furnished was not notch ed. and after being used by the plaintiff was shaken out of place. suddenly starting the machine. which cut off plaintiffs finger. a sufficient prima facie cause of action is shown; the un- fitness and inadequacy of the stick sup piled, constituting a defect in defend- ants plant.
 8. Plant of defendant; what appli-
 ance part of.-In such a case. the ap- pliance for securing the belting, all though nothing but fiat stick, was
 ' part of the plant of defendant, and # inadequate to the end for which 1t
 was to be employed. was defect In | he defendants plant; and the duty of | supplying proper appliance being upon the defendant, and the fact that only this defective appliance was at hand, establishes prima facie case of negligence on defendants part.
 4. General issue; when proper for the determination of jury.-In an action IO TGCONbI udHldBcS pStoOhdL juries, alleged in the complaint to have resulted from the negligence of de- fendant in not supplying proper ap- pliances for operating it's plant. where there Is evidence tending to show a defect in the plant of defendant, and that the defendant was negligent in not
 supplying proper appliances for plaint- if to operate it's machine, and also evidence tending to show that the in- jury complained of was not caused by
 such defect, the general issue is for
 the determination of the jury, and the general affirmative charge should not
 be given at the request of defendant. 5. Contributory negligence; when proper matter for jury It cannot be affirmed. as matter of law, that an employe, who is injured while oper- ating a machine in his employers plant, is guilty of contributory negligence in
 using a defective appliance furnished
 him by his employer, 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 effect; since
 being furnished the appliance by his employer for the particular use, and the l employer being negligent in furnish ing such defective appliance, or in not supplying a proper one, it is a ques- tion for the jury, under all the eircuh- stances to say whether his use of the appliance was negligent
 6. Assumption of risk; when ques- ton for the jury.-In an action to re- cover damages for personal injuries, alleged in the complaint to have result ed from the negligence of defendant in
 not supplying proper appliances for op-
 erating its plant when there is evil dence tending to show that the super intendent of defendant was informed that, by reason of the defective appli- ance supplied. the machine would sud- denly start when not so intended, and promised to have it fixed, and there Is
 a denial of such information and prom ise. it is for the jury to say whether or not the plaintiff assumed the risk
 of injury by using the machine with its defective appliance up to the time
 of the injury; it being shown that injury to plaintiff was caused by said
 machine starting suddenly when plaint- | if did not so intend.
 '. Plea; how objection must be rais- ed.-In suit to recover damages for personal injuries, when a plea alleges facts which are appropriate to plea of assumption of risk, but which are
 not apt in plea of contributory neg | ligence, which is the conclusion drawn from the facts stated. such defect must be pointed out by demurrer, specially
 raising that point.
 8. Plea what sufficient allegation
 in.-Where a plea alleges that the plaintiff was guilty of negligence,
 which contributed to his alleged injury.
 in this. that the plaintiff negligently remained in the service of defendant,
 in the operation and direction of said
 machinery, with full knowledge Of the facts and conditions therein all legged, for an unreasonable length of tIme," and the facts alleged in the com plaint embrace both the inadequacy of the appliance and the dangerous con- sequences of using it, the averment of the plea is in substance that the platnt- if knew of the danger of the situation. and the further averment that with such knowledge he remained at work for an unreasonable length of time, is equivalent to saying that a reasonable
 man, l. e., a man of ordinary care and prudence. would not have so remained. 9. Evidences when dismembered
 portion of finger admissible.-In an ac-
 tion by an employe against his em- ployer to recover damages for hav- ing his finger cut or mashed off while operating one of defendants machines | where the plaintiff testified that his
 accident occurred m a way different | from that shown by defendants tes-
 timony, and further testified that the severance of a finger In the way tes-
 tifd to by the plaintiff would leave tha sayerad Dort in a certain condition