Bryant v. Alabama Great Southern Railroad

46 So. 484 | Ala. | 1908

DOWDELL, J.

Count 10 of the complaint, to which a demurrer was sustained, was an attempt to charge wanton injury, and is not a count in simple negligence. It may. be that this count is defective in its averments and open to the demurrer, but not on the grounds of demurrer assigned. The office of a demurrer is to specifically point out the defects in the pleading to which it is directed, to afford the opposite party the opportunity of curing such defect by amendment. The trial court erred in sustaining the demurrer upon the grounds stated.

Plea 9 of the defendant was not subject to the demurrer interposed by the plaintiff. Count 1 of the complaint, to which this plea was addressed as an answer, charges simple negligence, and is based on subdivision 1 of section 1749 of the Code of 1896, known as the “employer’s liability statute.” The alleged defect under the averments of the count confessedly existed at the time of the injury. The plea avers that the alleged defect and the danger arising therefrom were at and prior to the happening of the injuries complained of obvious, such as could he seen and known by a man of ordinary care and prudence occupying the position of plaintiff’s intestate, and that plaintiff’s intestate, after such obvious risk and danger had existed, continued in the service of defendant for an unreasonable length of time, and thereby assumed the risk. A fair and reasonable construction of this plea is that the alleged defect and danger arising therefrom were obvious and existed prior to, and continued to exist up to, the time of the happening of the injury, and that plaintiff’s intestate, notwithstanding these facts, continued in the service of the defendant an unreasonable length of time, and in so doing assumed the risk. The plea was not subject to the grounds of demurrer stated, and we think the criticism of the plea in the argument and briefs of counsel is hypercritical. The case of Osborne, Adm’r, v. Ala. Steel & Wire Co., 135 Ala. 575, 576, 33 South. 687, cited by counsel for appellant, is an authority against, rather than in support of, appellant’s contention.

Pleas 20 and 21 were addressed to the sixth count, as well as to other counts, of the complaint,' and as an answer to the sixth count were insufficient. They do not •.show that-the alleged contributory negligence was sub- • sequent to the negligence charged in the complaint after the discovery of intestate’s peril. These pleas might be •otherwise improved in averment as to the facts .stated constituting the contributory negligence.

Counts 13, 14, 15, and 16 were subject to the demurrers interposed, and the court properly sustained the same.

For the errors indicated, the judgment will he reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Simpson and Anderson, JJ., concur.