51 So. 169 | Ala. | 1909
Lead Opinion
Count 1, as amended, is framed under subdivision 1 of tbe employer’s liability statute. —Section 3910 of the Code of 1907. While this count avers a defect in a flue connected with tbe linter, in addition to a defect in tbe machine in not being equipped with a reasonably sufficient appliance for properly raising tbe breast of said machine and bolding said breast up while said machine was being cleaned out, tbe proximate cause of tbe injury is ascribed in said count as resulting from tbe failure to have tbe machine equipped with tbe proper appliance for raising the breast and bolding it up when being cleaned out. Tbe defective flue is not alleged as tbe proximate cause, but tbe reference thereto is merely descriptive of conditions existing and which may have contributed indirectly to tbe injury. Tbe direct cause is alleged to be due to tbe kicking of tbe lever produced by tbe falling of the breast, and that tbe breast would fall because there was no sufficient appliance for raising and bolding it up while the machine was being cleaned or unchoked. Tbe trial court did not err in overruling the demurrers to this count.
Amended count 2 is also under subdivision 1 of tbe employer’s liability statute. Tbe injury is charged to have resulted from the kicking of tbe lever while plaintiff was pressing it, and which kicking owing to its defective condition, resulted either from tbe fact that it was sprung or that tbe nut to tbe bolt, passing through the binge Avhich attached tbe lever to tbe breast of tbe machine, produced a shoulder upon which lint Avould accumulate and wrap, and which would prevent said lever from bolding up after it was raised. Nor. do we think that tbe shoulder upon tbe bolt in tbe hinge was a foreign substance, and not, therefore, a part of tbe lever. Tbe count avers that tbe bolt Avas in
The injury, as charged in count 21, resulted from the moving, jumping, or kicking of the lever while plaintiff was pressing it, and which did so as a result of its being insufficient to hold up the breast at all times, and when pressed, on' the occasion in question, it jumped or kicked, thereby causing the injury. The trial court did not err in overruling the demurrers to this count.
The trial court did not err in sustaining the demurrers to pleas 2 and 3. — Ala. Chemical Co. v. Niles, 156 Ala. 298, 47 South. 239.
Plea 5 was defective, and the demurrer thereto was properly sustained. If not otherwise bad, it fails to aver that using a stick was the proper, or only safe, or the safer, way to unchoke the machine.
Plea 7 was defective. If not otherwise bad, it fails to set out any facts showing that it was negligent for the plaintiff to have worn a coat at the time. It does not aver that it was obviously or necessarily dangerous to wear a coat at the time, or that the only safe way was without a coat.
A plea of contributory negligence should set out the facts constituting the negligence. Plea 8 was therefore had for failing to set out the constituents of negligence. It was not necessarily negligence on the part of the plaintiff, to attempt to relieve the linter of its choked •condition while the machine was in motion. It is not averred that it was obviously dangerous to do so, nor are any other facts set out showing that it was negligence to so unchoke the linter while the machine was
' Plea 9 was had. The fact that plaintiff failed to stop the machine before uncholdng it was not per se negligence, and the plea fails to aver that it was his duty to stop it, or that the only proper and safe way was to stop it, before uncholdng the same. The general averment that he negligently unchoked it while running does not suffice.
Plea 20 may be good as per the interpretation given the plea in the case of Going v. Steel & Wire Co., 141 Ala. 537, 3 South. 784; but as so construed it is,' in effect, the same as plea ll, under which the defendant got the benefit of said plea 20.
The true doctrine as to the assumption of risk has been often declared by this court, and we quote from the case of Gainer v. So. R. R., 152 Ala. 191, 44 South. 652, 654: “The doctrine of ‘volenti non fit injuria’ applies under the employer’s liability act, and where an employe, knowing and appreciating the danger and risk, elects voluntarily to encounter them, and is injured, he cannot maintain an action to recover damages for the injury sustained. But if the employer undertakes, expressly or impliedly, to remedy the defect and remove the danger within a reasonable time, such an undertaking or assurance is an assumption by the employer of the risk incident to the duties of the employment during such reasonable time, and if the employe is injured in the meantime, by reason of the risk and danger thus assumed by the employer, the latter will be responsible for the injury. If the employe remains in the service, •and continues to encounter voluntarily and with a knowledge and appreciation of the risk, without such assurance, or after the time within which the defect should have been remedied and the danger removed, ae
As long as the period is running which is conceived to be covered by the promise, the defense of an assumption of the given risk cannot be relied upon by the master. — 1 Labatt, Employer’s Liability, § 425. Again, this author, in discussing the period covered by the promise, in section 429, says: “The circumstances accompanying the promise are sometimes of such a nature as to-show that the servant was placed under a peremptory and immediate obligation to discard the defective instrmkentalitv altogether, or to discontinue its use until it should be restored to a normally safe condition. But in the great majority of the instances the mere fact of giving the promise necessarily implies that the servant is expected to go on working. Sometimes the promise is given in words which obligate the master to bring about a restoration of normally safe conditions within a definite time. Under such circumstances it is presumably the duty of the servant to determine,.immediately after the giving of the promise, whether he will incur a risk which he may possibly have to endure for the entire specified period. More usually, however, the time at which the promise is to be fulfilled is not expressly mentioned. The legal effect of the promise is then considered to be that normally sáfe conditions will be restored in a reasonable time.”
The sixth replication to pleas 10 and 19 was defective. The nineteenth plea charges the plaintiff with a knowledge of conditions and results at the time he attempted to unchoke the machine. The sixth replication does not negative this knowledge, but merely sets up that the danger was not so obvious or glaring as that a reasonably prudent man would not have undertaken the work. This might be a good answer to the observance of orders, in the absence of actual knowledge of the defects and danger; but whether or not the defects and danger were obvious and glaring matters not, if the servant actually knew of same, as alleged in plea 19. “There is no doubt of the general rule that one who, knowingly and appreciating the danger, enters upon perilous work, even though he does so unwillingly and by order of his superior officer, must bear the risk.” — ■ Ferren v. Old Colony R. R., 143 Mass. 197, 9 N. E. 608; Labatt, Master and Servant, p. 1235, § 438, and cases
The sixth replication, if not otherwise bad, was subject to the thirteenth ground of the defendant’s demurrer. We do not question the soundness of the quotation in counsel’s brief, in so far as it applies to the case from which it is taken, [Pioneer Mining Co. v. Smith, 150 Ala. 359, 43 South. 561,] a.s that case was dealing with a servant who did. not actually know of the danger, after he was assured that the defect had been remedied. Moreover, the opinion says, on the top of page 360 of 150 Ala., and on page 562 of 43 South.: “This may all be true, yet it does not show beyond dispute that the intestate knew of the danger, or that the defect was open and glaring to ordinary observation after the attempt to remedy same.” Of course, if a servant knew of the danger from any source, he would be bound by his knowledge, whether the danger was glaring and open or not.
We have pronounced replications 2, 3, and 4 defective, for the reason pointed out in the discussion of same; but whether or not the demurrer took the point, so as to cause reversible error, we did not decide, as the case must be reversed on other propositions. Anticipating, however, that the replications will be amended so as to conform to this opinion, and that rejoinders 3 and 4 will be refiled, we will discuss them as a guide at the next trial. The third rejoinder was defective, for the reasons given in the discussion of the law as relating to the replications.
As we understand the fourth rejoinder, it charges the plaintiff with an assumption of risk by continuing in
As this case must be reversed upon the pleading, and as the complaint contained many counts, when the evidence was given, that were subsequently withdrawn by the plaintiff, it cannot serve as an accurate guide, upon the next trial, to discuss all the points on the evidence and charges. We will suggest, however, that the trial court committed reversible error in refusing charge 1, requested by the defendant. — Hale v. State, 122 Ala. 89, 26 South. 236. Nor does the fact that it may have been given in the oral charge of the court cure the error. — Snyder v. State, 145 Ala. 33, 40 South. 978; Orr v. State, 117 Ala. 69, 23 South. 696.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
Concurrence Opinion
concurs in the conclusion, and in the opinion, except as to the ruling as to the fourth rejoinder. He does not think that it sets up a new contract, and thinks that the demurrer thereto was properly sustained.
