44 So. 652 | Ala. | 1907
This is an action by an employe against bis employer to recover damages on account of a personal injury suffered while engaged in the discharge of his duties as employe. The complaint contains three counts, based, respectively, on the first, second, and third subdivisions of the employer’s liability statute (Code 1896, § 1749). The cause was tried on the general issue and three special pleas of contributory
After a careful examination and consideration of the evidence, we have been unable to find that any one of the pleas of contributory negligence finds any support therein. Indeed, appellee’s counsel has not argued or briefed the cause here on the theory that contributory negligence, as pleaded was proved; but his insistence, in justification of the court’s ruling in giving the charge is, first, that the evidence failed to malee out a cause of action on any .one of the counts; and, second, that the evidence without conflict shows that the plaintiff assumed the risk which caused his injury. There is no plea of assumption of risk, and on this account counsel for appellant insists that the defendant should he cut off from availing itself of that defense, even though it was established by the evidence; citing and relying on the case of Foley v. Pioneer, etc., Co., 144 Ala. 178, 40 South. 273, as supporting the insistence. In ■ the case cited, the court, through Dowdell, J., said that: “Assumed risk, when set up as a defense, is subject-matter for a special plea. There is a well-defined distinction between assumption of risk and contributory negligence. Still both of these defenses are in confession and avoidance of the plaintiff’s action, and cannot be availed of under the general issue, but must be specially pleaded.” While no authority is cited in that case in support of the ruling that assumption of risk must be specially pleaded, it is supported by respectable authority, as may be seen by reference to 13 Ency. Pl. & Pr. p. 914. Notwithstanding the ruling in the Foley Case,, we apprehend that if, without a plea of assumption of risks, the record shows (as it does in this case) that both parties, without objection, have tried the case to its conclusion as if
The plaintiff was the only witness examined on the trial'of the cause, and the bill of exceptions purports to set out the whole of the evidence. It appears that the plaintiff at the time of his injury was engaged as an employe of the defendant in operating a planing machine in the defendant’s planing mill in the city of Birmingham. That he was an experienced man in that business is shown without dispute, it appearing that he had been engaged in that particular business for 15 years prior to his injury, and that he had been running the machine in question for a period of two years. The motive power for the planer was furnished by an overhead line shaft, from which was a “driving belt to- the
But it is insisted by appellant’s counsel that, notwithstanding the evidence shows that the plaintiff knew of the defect in the belt and appreciated the danger and risk, yet the evidence further shows that the plaintiff had notified defendant’s foreman of the defect in the belt a short time before the accident occurred, and that, having given such notice, plaintiff could remain in the service of the defendant and continue to operate the planer with the defective belt without assuming the risk consequent therefrom. The true doctrine in this respect is declared by this court in Birmingham Railway & Electric Co. v. Allen, supra, in this language: “The doctrine of ‘volenti non fit injuria’ applies under the em
The foregoing discussion has been confined to the case as presented by the first count of the complaint. In the second and third counts the negligence relied on is that alleged to have characterized the action of the foreman (Perdue) in “negligently ordering plaintiff to feed into
On the foregoing considerations, it is the conclusion of the court that the general affirmative charge as requested was properly given for the defendant; and the judgment appealed from must be affirmed.
Affirmed.