135 Ala. 571 | Ala. | 1902
To withstand an appropriate demurrer, a plea of contributory negligence must go beyond averring negligence as a conclusion and must aver a state of facts to which the law attaches that conclusion.—Tenn. Coal, etc., Co. v. Herndon, 100 Ala. 451; Louisville & Nashville Railroad Co. v. Markee, 103 Ala. 160. Of the pleas referred to in the assignments of error that numbered 3 conforms to the rule stated, but those numbered 4, 7 and 8, respectively, are fatally defective. The averments of plea 4 respecting the danger involved in crossing the waterway wherein plaintiff’s intestate lost his life are but restatements of facts alleged in the complaint and to that extent are in confession rather than in avoidance of the complaint. The other aver-ments in that plea of facts as constituting, contributory negligence, show merely there was a Avay known to the intestate by which he could have gone without crossing the waterway and that “lie knew or could have known by the use of due care” that circumstances then and there existing rendered his attempt at crossing the waterway dangerous. , According to the complaint the circumstances which created the danger and constituted the defect of way complained of ivas the partially uncovered condition of the waterway. Unless the intestate had notice to the contrary he had a right to assume, and to act upon the presumption, that defendant had not been negligent, and, therefore, that the Avay Avas in a reasonably safe condition.—Georgia Pac. R. Co. v. Davis, 92 Ala. 300; L. & N. R. R. Co. v. Bouldin, 121 Ala. 197. Therefore, notice of the defect and danger of the waterway covering must have been chargeable to the intestate as a condition precedent to the erection of any duty on his part in respect to choosing between routes, or of otherAvise using special care to avoid the danger of the AvaterAvay. In this plea it is improperly assumed that the duty of using such care Avas on the intestate in the first instance, regardless of whether he then had notice of the defect complained of.
An employe may be negligent in failing to give notice of defects in his employer’s ways, works, plant or
Neither pleas. 7 nor 8 purports to show the intestate was in default in respect of giving information of the defect in question so as to (exempt defendant from liability under subdivision 5 of section 1749 of the Code.
Reversed and remanded.