| Ala. | Nov 15, 1899
This appeal is prosecuted by the plaintiff in. the court below from a judgment sustaining a demurrer to his complaint. The complaint contains several counts. The first, second, third and fourth counts áre attempted to be framed under the first sub-division of section 1749 of the Code. In each of them a defect in a steel bar used by the plaintiff in prizing up a rail on the defendant’s track, is the alleged cafise of his injury. In count 1 it is alleged that the injury was caused by reason of a defect in the bar, which was dull and blunt at the end instead of being sharp. In count two the allegation is that the injury was caused by the bar slipping off of or along the timber, because said bar was in a defective condition; to-wit, the end of it was not sharp, but blunt and dull. Count 3 alleges that his injury was suffered in consequence of the negligence of one Staples, whose duty it was to see that the bar was in good condition, in allowing said bar to be and remain in a dull, blunt, defective condition.
The fourth count charges that the superintendence of the work which the plaintiff was doing for the defendant at the time of his injury was entrusted to one Staples, and he, in the exercise of such superintendence, allowed the bar used by the plaintiff to get out of order by becoming dull and blunt and to so remain.
Among the numerous grounds of demurrer assigned to each of these counts it is only necessary to refer to one, which is fatal to plaintiff’s right of action as counted upon in each of them. This assignment is that these counts fail to show any cause of action against the defendant, in that they show that the injury complained of was not due to any defect in the condition of the ways, works, machinery or plant connected with or used in the business of the defendant. In other words,
It is sufficient to say of the fifth count that it improperly sets forth two separate causes of action — one cause of action under sub-division 1 and the other under subdivision 3 of section 1749. — H. A. & B. R. R. Co. v. Dusenberry, 94 Ala. 413" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/highland-avenue--belt-railroad-v-dusenberry-6514561?utm_source=webapp" opinion_id="6514561">94 Ala. 413; R. & D. R. R. Co. v. Weems, 97 Ala. 270" court="Ala." date_filed="1892-07-01" href="https://app.midpage.ai/document/richmond--danville-railroad-v-weems-6514928?utm_source=webapp" opinion_id="6514928">97 Ala. 270.
It is clear that the eighth count does not state a cause of action under section 1749 of the Code. The question is whether it states a good cause of action at common law. The gravamen of'this count is “that defendant did not provide good, proper and suitable tools-'or implements with which to do the work, which the plaintiff was performing for the defendant, but only the said steel bar as aforesaid.” The employer, while under the -duty to use due and reasonable care and diligence in selecting and providing safe and suitable appliances for' the employee, does not guarantee that they shall be free from defects or the best in use, and is not the insurer of their safety. The test in all cases involving the question is, whether or not the -employer negligently failed- to use ordinary care and prudence in the selection of the appliances. Without negligence there can be no liability. Wood’s Master & Servant' (2d ed.) § 326, and notes. “The master’s liability is based upon his personal neglige-nee, hence, in all cases the evidence must establish personal fault, or what is equivalent thereto, on his part.” — lb. § 345.
“There is no implied warranty on the part of a master that the tools furnished his servant are sound and fit for the purposes intended. He is only bound to use proper care in providing them. That a master might h ave known, by the rise of ordinary care-and diligence, that a tool furnished his servant for use was defective, is not sufficient to make him liable for the injury resulting from its use, irrespective of any probability of harm
Wood in his work on Master and Servant in section 346 uses this language: “The measure, -of the master’s duty is to exercise due care in providing instrumentalities for the servant in the prosecution of the . business, and prima facie he is presumed to have done so,, and if he has in fact done so [that is, has exercised due care],, no liability attaches for defects therein, either in machinery, materials, buildings, or other appliances, unless negligence can be imputed to him in reference to their examination and repair. * ■ * * Therefore, if a servant is injured by defects in the instrumentalities of the business, he must show some fault on the .part of the master, as that.he did not use ordinary care in providing them’originally, or that-he did not exercise such care in keeping them in repair.”
In Northcoate v. Bachelder, 111 Mass. 322" court="Mass." date_filed="1873-01-15" href="https://app.midpage.ai/document/northcoate-v-bachelder-6417135?utm_source=webapp" opinion_id="6417135">111 Mass. 322, it.is said: “The-law implies only that he shall do what a.man,of ordinary care might reasonably be expected to do, taking into account all the' circumstances of the case, to guard the servant against the particular peril incurred. Me is not an absolute insurer,-and as such answerable for the result, but. he is only answerable for negligence.” — See Wood on Master and Servant, § 410, note 2, p. 803; 15. § 411; 1 Bailey Personal Injuries, Master and Servant, §§ 99, 106. - ■
It is also a well established principle that “unless there has been reasonable time and opportunity to remedy the defect in appliances after discovery thereof, the failure so to. do cannot be negligence. Mere knowlelge without opportunity to act.on it would not constitute negligence.”- — -1 Bailey Personal Injuries, Master and Servant, § 454 a, p. 155, and authorities cited in notei •
These principles were announced and enforced by this..court in.the case of M. & O. R. R. Co. v. Thomas, 42 Ala. 672" court="Ala." date_filed="1868-06-15" href="https://app.midpage.ai/document/mobile--ohio-r-r-v-thomas-6507617?utm_source=webapp" opinion_id="6507617">42 Ala. 672, which was an action at eompion law, prior to the enactment of the Employer’s. Liability statute. In that case, which was an action, by the employe, charging negligence of the defendant in running an engine out of
In Smoot v. Railroad Co., 67 Ala. 13" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/smoot-v-mobile--montgomery-railway-co-6510811?utm_source=webapp" opinion_id="6510811">67 Ala. 13, it was said: “The appellant '[Railroad Company] cannot be made liable, unless negligence can be imputed to it. The burden of proving such negligence rests -upon the appellee [Smoot]. v It is the indispensable element of his right of recovery — ¡the very gravamen of his complaint. Inferences of it cannot be drawn from the fact of injury, find from the unfit and unsafe condition of the car. This is the established doctrine, distinguishing the case of a servant, claiming damages for- injuries resulting from negligence, and passengers, who can recover upon a presumption of negligence, whenever injuries are received because of unfit instrumentalities employed ■ in their transportation.” — L. & N. R. R. Co. v. Allen, 78 Ala. 494" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-allens-admr-6512286?utm_source=webapp" opinion_id="6512286">78 Ala. 494; M. & M. R. R. Co. v. Smith, 59 Ala. 248.
Applying the foregoing principles to the count under consideration, it is obvious that it is wholly insufficient. There is no averment that the defendant knew or ought to have known that the steel bar was unsafe-and unsuitable for the purpose for which it was furnished to be used; or that there was negligence in the selection of it for such purpose.
Following the uniform practice of this court, we must decline to consider the other assignments of error, as they are not so much as hinted at in brief of appellant’s counsel, much less insisted upon. They are and must be treated as waived.
Affirmed.