72 So. 341 | Ala. | 1916
Herman Roberts was engaged in the appellee’s service when the personal injury described in the complaint overtook him. He was then 19 years of age. The roof of a building used by appellee in its business was being repaired. This roof was made by the spreading of hot tar on some character of more permanent surface. Roberts’ duty was to carry by hand buckets (two) of hot tar from one edge of the roof, across the roof, to the place where a defect in the roof was being repaired. He had repeatedly safely rendered this service during that day, before injured. While carrying two buckets to the repair men, he fell, and in falling his hand went into one of the buckets of hot tar and was thereby injured.
The complaint contains six counts. The first charged a defect in the condition of the ways, works, etc., under the first subdivision of the Employers’ Liability Act (section 3910 of the Code), the defect being alleged to be: “Said roof was defective; said roof was slippery; said roof was wet.” The second count was drawn under the second subdivision of the Employers’ Liability Act, and alleged that the superintendent “negligently permitted the roof of said building to be and remain in a defective condition,” or “negligently allowed said roof of said building to become wet and slippery.” The third count, drawn to state a cause of action under the third subdivision of the Employers’ Liability Act, ascribes the plaintiff’s injury to a negligent order or orders, being thus described therein: “He negligently ordered the plaintiff to carry tar on the roof of said building when said roof was defective, which was known to said Locke, or he could have known the same by the exercise of reasonable diligence. He negligently ordered plaintiff to carry tar on said roof when he knew the same to be defective. He negligently ordered plaintiff to carry tar on said roof when he knew the same was wet and slippery, or he could have known the same by the exercise of reasonable diligence.”
The fourth count impleaded the defendant for an alleged breach of the common-law duty to furnish him a reasonably safe place in which to work; the breach of this duty being specified in the count as follows.: “The roof of said building was allowed to be and remain wet and slippery. The roof of said building was allowed to be and remain in a defective condition.”
The cases of Ala. M. R. R. Co. v. Marcus, 128 Ala. 355, 30 South. 679, and Alabama Steel & Wire Co. v. Wrenn, 136 Ala. 475, 34 South. 970, cited on appellant’s brief, involve the differentiating factor of a minor’s service with or about machinery.
The general affirmative charge requested for defendant was its due. The judgment is affirmed.
Affirmed.