76 So. 74 | Ala. | 1917
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This is the second appeal in this cause. See report of first appeal (
The action was tried on issues tendered by counts 1 and 5. Each count sufficiently averred that at the time of plaintiff's alleged injury he was acting within the line and scope of his employment with defendant. Ala. Fuel Iron Co. v. Ward,
Count 1 was drawn to state a cause of action under the first subdivision of the Employers' Liability Act (Code, § 3910), and attributes *311
plaintiff's injuries proximately to a defect in the ways, works, machinery, or plant connected with, or used in the business of the defendant, or, more specifically stated, to the fact that "the roof of the mine in which plaintiff was working was defective." The count was not subject to the challenge of the demurrer. Clinton Mining Co. v. Bradford, supra,
Count 5 charged the defendant with a wanton wrong, and demurrers thereto were overruled. As shown by the judgment entry of March 6, 1915, the defendant reassigned its demurrers to the complaint as amended, and to each count thereof, and also filed "additional demurrers by separate paper." We have not found the demurrers last filed. We are of the opinion that the count was not subject to the demurrers assigned to it. Wilson v. Gulf States Steel Co.,
It is established in this state that a plea of contributory negligence is not sufficient if it merely states a conclusion of law; that it must aver the facts constituting the negligence, and the facts so averred must be such that the conclusion of negligence follows therefrom as a matter of law. Dwight Mfg. Co. v. Holmes, 73 So. 933,1 and authorities there collected; Pollock on Torts, 365.
Plea 3 was held insufficient as an answer to count 1. The effect of this plea, among other things, was to aver: (1) That at the time plaintiff sustained his injuries he was engaged in mining ore as an employé of the defendant; (2) that while so engaged a piece of rock became loose and was likely to fall; and (3) that this fact was known to plaintiff. Thus a knowledge of the defect, not of the danger, was charged to plaintiff. The plaintiff's duty was averred to have been, either to pull said rocks down, or to notify defendant's mine boss that said rock was loose, and not to go under it until a timber had been set thereunder by defendant's agent. The negligence sought to be charged to plaintiff by the plea is thus epitomized:
"But notwithstanding said duty plaintiff, when in the exercise of reasonable care he would have known the danger or risk he was thereby incurring, negligently went under said loose rock which fell, causing the injury of which he complained."
It is noted that the plea charges the duty to the plaintiff in the alternative, either to remove the rock himself or to notify defendant's mine boss or timber man of its condition. It is not averred that plaintiff did not discharge this duty of notifying defendant's agent of the defective condition of the rock or slate in the roof of the mine, nor is it averred, except by way of inference, that plaintiff did not pull the rock down, the averment being that "he negligently went under said loose rock which fell, causing the injury." Under this plea the plaintiff may have fully discharged his duty, on the discovery of the defect, by promptly notifying the defendant's agent of the same, affording the latter a reasonable time thereafter in which to remedy the defect before going in close proximity thereto; and yet the injury may be the proximate cause of the negligent failure of the defendant's agent, after such notice, to promptly remedy the defect or to remedy the same within a reasonable time thereafter.
The effect of the plea was to charge plaintiff with a knowledge of the defective condition, not a knowledge of the danger, nor that it was open and obvious. Wilson v. Gulf States Steel Co., supra; Dwight Mfg. Co. v. Holmes, supra; Porter v. T. C., I. R. R. Co.,
Assignments 8 to 12, inclusive, relate to the overruling of demurrers to certain of plaintiff's replications. As appearing in the caption, the replication was offered as reply to pleas 6, 7, 8, 9, and 10; in the body thereof, *312 as answer to "the matters and things set forth in pleas 7 and 10." Thus it is clear that the replication was filed as an answer to pleas 7 and 10, and not to pleas 6, 8, and 9, and that it should have been so considered.
We are not without decisions to the effect that such clerical errors in pleading may be corrected by the context. A judgment has been referred to the complaint (Kyle v. Caravello,
The averment of fact contained in the replication was:
"That there was no duty on plaintiff to notify defendant of the dangerous defects set forth in said plea for the reason that defendant or some person in the service or employment of the defendant superior to plaintiff already knew of said dangerous defect set forth in said plea."
As to plea 7, this was but a joinder of issue thereon as to knowledge by defendant of the defect.
As to plea 10, it likewise supports the complaint on the question of knowledge of the defect by the defendant. That is to say, confessing that plaintiff did not give the notice of the defect, but notwithstanding this failure, he was relieved from the performance of this duty to notify by the averment that it would be useless so to do, since the defendant well knew it, or some person in the service or employment of the defendant superior to plaintiff already knew of said dangerous defect set forth in said plea and complaint. The replication was in the nature of a confession and avoidance of pleas 7 and 10. Gould on Pl. (Will's 6th Ed.) p. 90; Kinkead v. McCormack, etc., Co.,
"Conceding * * * that the plea does not invoke with technical precision the complete rule of duty which the law casts upon a traveler who has notice of the presence of a dangerous excavation, nevertheless, the oral charge of the trial judge very clearly and correctly presents that duty to the jury as the decisive issue."
So in the instant case, the trial judge properly instructed the jury of the duty of the plaintiff and the defendant under their respective pleadings, and specifically under the replication in question. So if the ground of demurrer to the replication was specific (Wikle v. Johnson Laboratories,
Assignments of error 13 to 26, and 38 and 39, challenge the action of the court in qualifying the jury. The jury were excluded from the courtroom, and during their absence evidence was admitted to show the interest, in the result of the trial, of a designated insurance company. Being satisfied that such insurance existed in favor of the defendant, the court properly qualified the jurors as to their interest in or connection with said insurance company. The duty of the court, and of counsel, in the qualifying of jurors on such motions, was recently announced in Citizens' Light, Heat Power Co. v. Lee,
We have examined the several exceptions to the introduction of evidence, and find no merit in them. No good purpose would be subserved by a detailed discussion of each, however willing we may be to so treat them.
The argument of counsel for plaintiff was no more than an illustration, in argument, of the effect of general efficiency. True, the remark might well have been excluded, but it did not bring the case within the application of the rule of injury declared in Moulton v. State, 74 So. 454;5 Jackson Lumber Co. v. Trammell, 74 So. 469;6 B. R. L. P. Co. v. Gonzalez,
There was evidence to support the plaintiff's charge of negligence, as averred *313
under each count, and questions for the jury were thus presented. Amerson v. Corona Coal Coke Co.,
The evidence showed that plaintiff was not an independent contractor, but an employé of the defendant. One who represents and carries out the will of the master in the prosecution of the work, not only as to the result to be accomplished, but also as to the means to be employed, is a servant, and not an independent contractor. Plaintiff's written charge No. 25, to this effect, was properly given by the court; and no error was committed in the refusal of defendant's written charge No. 13.
Several of the defendant's requested charges were properly refused by the court for the reason that an acquittal was predicated on the contributory negligence of the plaintiff, and said charges were not limited in application to count 1. Contributory negligence of plaintiff was not an answer to count 5, and the several charges of contributory negligence should have been properly limited to the count to which they had application. Moreover, the oral and special charges were presented for our consideration as a part of the record (Capital Security Co. v. Owen, 72 So. 8;7 Dorough v. State,
The statute does not impose upon the employé the duty to notify the employer or master, who has notice or knowledge of the defect that caused the injury. There was no error in giving plaintiff's written charge No. 27. Southern Railway Co. v. McGowan, supra.
It results from the foregoing that the judgment of the city court of Birmingham must be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.