55 So. 139 | Ala. | 1911
In framing' count C it was most likely the purpose of the pleader to state a case of intentional or wanton injury. The demurrer took the point that the count involved inconsistencies. It does fail to observe the distinction between intentional wrong and that wantonness which is the equivalent of intentional wrong, on one hand, and mere negligence or inadvertance, implying the absence of mental action in respect to the thing done, on the other. But nothing more need be said of the ruling on demurrer to the count, since that ruling is not assigned for error.
However, rulings of the court upon demurrers to pleas of contributory negligence again showed the court’s opinion that this count contained a sufficient statement of intentional and wanton injury. In this there was error. Plaintiff was in the defendant’s employment as one of a bridge crew, and was injured by falling from the hand car on which he was at the time riding. Another
The complaint is found to contain two charges of negligence; One, that Murphy engaged, or permitted the car to engage, in a race; another, that he permitted the car to run at a great and excessive rate of speed. Of the first, we find no evidence in the record. In respect to the second, it is observed that there is no evidence tending to show that Murphy directed the speed at which the car was operated. He merely sat upon the car, saying-nothing. Plaintiff took part, along with other members of the crew, in propelling the car. The charge, then against Murphy, means that he ought to have interfered to warn and command plaintiff and the others to drivé the car more slowly. The dereliction here charged seems to-resemble more nearly a default in superintendence than any other for which the employer’s liability act provides a remedy. Plaintiff was of mature years and experienced in his work. As for anything appearing in the evidence, the danger of operating the car at the speed charged was as obvious to him as to the foreman. The duty of the foreman, as a representative of the defendant, did not require him to stand over the plaintiff at every turn to warn him of what he could as well see and know for himself. He may have properly left something to plaintiff’s instinct .of self-preservation, and to the exercise of those ordinary faculties which every one should use when his safety is known to be involved. An employee does not assume the risks incident to the negligence of a superintendent, or of a person to whose orders he is bound to conform, or of a person in charge or
There was error, also, in permitting the plaintiff to testify that he suffered much mental anguish. This court after, due consideration, has recently decided this point. Western Union v. Cleveland, 169 Ala. 131, 53 South. 80. Judge Mayfield adheres to the view^ shown by his dissent in that case but concurs in the reversal on other grounds.
Reversed and remanded.