69 So. 540 | Ala. | 1915
Appellant insists in argument that demurrer should have been sustained to this count because: “It does not appear that defendant has violated any duty which it owed plaintiff;” that “it does not appear that the superintendent charged with negligence, was as a matter of law guilty of negligence;” and that “it appears as a matter of law that there was no such duty on defendant as that alleged.”
In Robinson Mining Company v. Tolbert, 132 Ala. 462, 31 South. 519, the averment of negligence questioned by demurrer was that plaintiff “received said injuries and suffered said damages as aforesaid, by reason and as a proximate consequence of the negligence of a person, to wit, one Frierson, in the service or employment of defendant, and intrusted by defendant with superintendence, whilst in the exercise of such superintendence, to wit, said person negligently failed to warn or notify plaintiff of the presence of a large quantity of a high explosive, at or near the place where plaintiff was at work as aforesaid, though there was present, at or near the said place at which plaintiff was at work, a large quantity of a high explosive which exploded as aforesaid.”
It was there held that the plaintiff was not required to allege that Frierson knew of the presence of the high explosive, and that it was sufficient to allege the negligence of the defendant, and to “prove that defendant
The sufficiency of the complaint in Tolbert’s Case was again discussed, and held free from the demurrer,, in Republic Iron & Steel Co. v. Williams, 168 Ala. 612, 53 South. 76, and in Little Cahaba Coal Co. v. Gilbert, 178 Ala. 515, 524, 59 South. 445. The count held sufficient in Little Cahaba Coal Company v. Gilbert, supra, concluded with the words: “Plaintiff avers that said part of said roof or top fell upon or against him, as aforesaid, and he suffered said injuries and damage by reason and as a proximate consequence of the negligence of a person in the service or employment of defendant, who had superintendence intrusted to him, whilst in the' exercise of such superintendence, viz., one McGinnis, in. the exercise of such superintendence, negligently caused or allowed said part of said roof or top to fall upon or’ against plaintiff on the said occasion.”
The Chief Justice, writing the opinion in that case, reviewed Robinson Mining Company v. Tolbert, supra, and stated that the count was not subject to the ground of demurrer that it failed to “show a duty on the part
Our many imported cases hold that, when the complaint for negligence shows a relation-between the parties out of which arises a duty owing from the defendant to the plaintiff, and it is averred that the defendant negligently failed to do and perform the act or acts imposed by that duty, a sufficient cause of action is stated. It is not necessary to define the quo modo, or to specify the particular acts of diligence which should have been performed in the discharge of the duty. What the defendant did, and how he did it, or what he failed or omitted to do, are generally better known to the defendant than to the plaintiff. Hence, in such cases, a general form of averment is sufficient. — Leach et al v. Bush et al., 57 Ala. 145; Ensley Ry. Co. v. Chewning, 93 Ala. 24, 9 South. 458; M. & O. R. R. Co. v. George, 94 Ala. 199, 214, 10 South. 145; L. & N. R. R. Co. v. Jones, 130 Ala. 470, 30 South. 586; Republic Iron & Steel Co. v. Williams, supra; Little Cahaba Coal Co. v. Gilbert, supra; Sloss-Sheffield Co. v. Terry, 191 Ala. 476, 67 South. 678.
In the instant case count 2 shows the relation between the parties to have been that of master and servant, at one of the defendant’s coal mines; that plaintiff was there in the service or employment of the defendant, as a coal miner, and that while so engaged in the discharge of his duty as such employee he was injured, etc.; that his injuries were the proximate consequence, were caused by reason, of the negligence of a certain Mr. Flynn, who was in the service or employment of
It will be noted that in this count there is not only a general averment of defendant’s negligence in the matter of complying Avith the statute, but, in addition, the negligence is specifically charged and pointed out. It cannot be said that there is a substantial distinction betAveen the averments of count 2 of the instant case, AAdiere the duty of defendant, and its negligent failure to observe and perform it, are averred in the words “negligently permitted plaintiff to work in a dangerous part of said mine where rock was liable to fall on plaintiff, without Avarning or notifying plaintiff or such danger,” and the averment in the case of Robinson Mining Company v. Tolbert, supra, AAdiere the duty, and its fail: ure, are alleged as follows: “Said person negligently failed to warn or notify plaintiff of the presence of the large quantity of a high explosive, at or near the place where plaintiff was at work as aforesaid,” etc.
It was not necessary to aver that the defendant knew of such defective condition of the top or roof of the mine, because, as said in Tolbert’s Case, supra, and in Williams’ Case, supra, the superintendent in charge of that work was in the place of the master, and was presumed to know of the condition of the place and of the dangers of the employment; and knowing of the dangers of the place, of the defects of the top or roof of the mine, which it is alleged he negligently permitted,
The failure of duty charged to the master in count 2 of the complaint before us is its negligent failure to properly support the roof, or its negligently permitting it to be and remain defective, or its negligently permitting plaintiff to work in such a dangerous place without warning him of such dangers. This was a sufficient allegation of the duty that the defendant owed to the plaintiff,.and a sufficient allegation of the negligent failure of the defendant, through its superintendent, to- discharge such duty to the plaintiff. The pleader having shown a duty, and its breach, -in that defendant’s employee, Mr. Flynn, who had superintendence intrusted to him, and while in the exercise of such superintendence, was negligent in permitting the roof of the mine where plaintiff was Avorking to be defective, or improperly supported, and in permitting plaintiff to work in a dangerous part of said mine, where rock was liable to fall on him, Avithout warning him of such danger, other averment is not required. As was said by Mr. Justice Sayre in Republic Iron & Steele Company v. Williams, 168 Ala. 620, 53 South. 76, the complaint is not to be judged by a consideration of the last averment only.
Affirmed.
