65 So. 360 | Ala. | 1914
Action by appellee, under the Employers’ Liability Law, for personal injury received while in the employment of appellant.
The trial court’s separate' rulings in holding counts A, B, and C of the complaint good against demurrer are assigned for error. Counts A and B, after setting out in a common statement the relation of the parties, that plaintiff was injured by a cable or iron rope striking him while at work for defendant at Bessie, where defendant operated a mine, and that his injury was caused by reason of a defect in the condition of the defendant’s ways, works, machinery, or plant, particularize the lack of proper condition as follows: Count A: “Said cable was not sufficiently and properly held in place.” Count B: “Said cable was insufficiently and improperly held
The statute (section 3910 of the Code) holds the master or employer liable to answer in damages to his servant or employee in certain conditions: “When the injury is caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with, or used in the business of, the master or employer.”
Appellants seems to deal with these counts as designed to charge a defect in the condition, structure, or fitness of the cable, without regard to its use in connection Avith correlated parts of defendant’s ways, works, machinery, or plant, and yet failing to show that the cable in and of itself was defective. If a proper arrangement of the cable for use Avith reasonable safety required that there should be some device for holding it in place, then the absence or inefficiency of such device would constitute a defect, within the meaning of the statute. The name or description of the device is not alleged in count A, but its proper use and its absence or inefficiency for its purpose is shown; and without approving the count in every respect, for it probably needed amendment in one respect, Ave think it stated a cause of action and Avas proof against the grounds of demurrer assigned..
Appellant urges upon us the decision in Woodward Iron Co. v. Johnson, 150 Ala. 365, 43 South. 186. The court’s criticism of the complaint in that case was sound, though technical. It proceeded upon the idea that the language used Avas to be taken and accepted at exactly its face value. The language Avas that “said defect consisted in using a timber buggy, without, etc.”; and the court held the complaint to aver a negligent user rather than neglect in furnishing a defective timber buggy. It seems clear on this statement that a like criticism
Appellant also relies upon Huyck v. McNerney, 168 Ala. 244, 50 South. 926. The ruling there was that a complaint under the statute, which averred that the ends of the ladder upon which defendant [plaintiff] was descending were round at the bottom, and thereby rendered said ladder “liable to slip and fall,” and said ladder “was not braced to prevent it from slipping and falling,” did not show a defect per se in the ladder, and should have averred, besides the surrounding conditions, the angle at which the ladder stood, and the character of the rest. To support this conclusion the court resorted to its common knowledge of a common appliance. In the case before us our common knowledge does not help us to a like conclusion. Following here the analogy of Birmingham Traction Co. v. Reville, 136 Ala. 335, 34 South. 981, we read these counts to aver that a cable, not sufficiently and properly held in place, was a defect in the ways, works, machinery, or plant of defendant, and hold that, on the case thus presented, it is not for the court to determine, as matter of law, whether a cable insufficiently and improperly held in place constituted a defect in defendant’s ways, works, machinery, or plant. That was a question for the jury.
It has never been supposed that alternative averments of the sort found in count B rendered the count bad; each alternative being good. The demurrer to this count was properly overruled.
Count C of the complaint is framed under subdivision 3 of the act.—-Code, § 3910. It counts upon a negligent order to which plaintiff was bound to conform.and did conform. Under the'liberal rule of our cases, this count must be held good.—Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 192, 40 South. 280. Appellant insists upon
Charge 5 refused to defendant was covered by charges given at its request and stating, some of them, the proposition of this charge in a form even more favorable to defendant than it was entitled to have.
We think it very clear, under the evidence, that defendant was not entitled to charge 4. Long was defendant’s general superintendent in charge of the mine and the operations there carried on. There was evidence tending to show that, for some days previous to plaintiff’s injury, he had knowledge of the particular defect which caused that injury. Such being the case, plaintiff might have recovered on any one of the counts submitted to the jury, whether they specifically charged negligence to Long or not. Defendant was responsible for his negligence in the premises.
We find no error, and the judgment will be affirmed.
Affirmed.