Smith v. Watkins, 55 So. 611

Smith v. Watkins

55 So. 611 | Ala. | 1911

ANDEBSON, J.

While it is not tbe absolute and unqualified duty of tbe master, under tbe common law, to furnish tbe servant a safe place in which to do bis work, it is bis duty to exercise reasonable skill and care to afford tbe servant a reasonably safe place within which to do bis work, and under our system of pleading the averment that- tbe master “negligently” failed to *504furnish or provide a reasonably safe place is the equivalent of averring that he failed to exercise reasonable skill and care to furnish a safe place, and is sufficient; and the complaint in the case at bar meets the former rulings of this court, and was not subject to the defendant’s demurrers. — Gray Eagle Co. v. Lewis, 161 Ala. 417, 49 South. 859; Wolf v. Smith, 149 Ala. 460, 42 South. 824, 9 L. R. A. (N. S.) 338. The complaint in the instant case is unlike the counts condemned in the case of Merriweather v. Sayre Mining & Mfg. Co., 161 Ala. 451, 49 South. 916, and Huyck v. McNerney, 163 Ala. 244, 50 South. 926. The pleader, in count 13 in the Merrhoeather Gase, supra, was not content with charging a negligent failure to furnish a reasonably safe place, but followed it up with charging, in effect, that it was the master’s imperative' or unqualified duty to do so, when under the law he is only required to use reasonable care and skill in affording the place, and this was. the theory upon which count 13 was condemned in said Merriweather Case. Count 1 in the Huyele Gase, supra, also charged that it was the duty of the defendant to have in the building “good and safe tools.” The court condemned the count upon the theory that it was not the duty of defendant to jfumish good and safe tools, but that his obligation was discharged if he furnished instrumentalities reasonably safe and suitable. The count in the case at bar has no such superfluous charges or averments.

The trial court erred in sustaining the demurrer to the plaintiff’s complaint, which contained but one count, and the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and’ Sayre and Somerville, JJ., concur.