62 So. 804 | Ala. | 1913
Lead Opinion
— This suit was brought under subsection 2 of the Employers’ Liability Act (section 3910 of the Code). Count 4 alleged the relation between the parties out of which a duty arose, the nature and extent of plaintiff’s injury, and that it was caused by “a certain-
In our most recent case of the sort we held in respect to a similar count that, though it followed the language of the statute, it was subject to demurrer, because it failed to point out, even in general terms, any act of negligence on the part of the alleged superintendent with respect to his duty while so engaged. — Maddox v. Chilton Warehouse Co., 171 Ala. 216, 55 South. 93.
In Bear Creek Mill Co. v. Parker, 131 Ala. 293, 32 South. 700, the fifth count of the complaint there under consideration, after alleging preliminary matter about which there was no question, showed plaintiff’s injuries, and that they resulted from plaintiff being caught between two cars of the defendant. The averment which needs to be noticed in this connection was as follows: “And plaintiff avers that .his said injuries were caused by reason of the negligence of Bill Simmons, who was then and there in the service or employment of the defendant, and was then and there intrusted with the superintendence of the train hands and loaders on defendant’s said cars and the coupling thereof, and that said injury occurred while the said Bill Simmons was in the exercise of such superintendence.” It was held that the count was not demurrable for failing to aver the facts relied on to constitute negligence. It is hot impossible to find sensible differences between the question there presented and the one at hand. There
The rule of this court has been that a complaint under the Employers’ Liability Act should, in respect of certainty, conform to those rules which under our system apply to pleadings generally. Those rules permit the averment of conclusions, but conclusions when employed must ordinarily be accompanied with averments of fact Avhereon issues can be understood, joined and tried. — L. & N. R. R. Co. v. Jones, 130 Ala. 470, 30 South, 586, citing Leach v. Bush, 57 Ala. 145, upon which have been planted all those numerous cases in which great generality in the averment of negligence has been accepted as meeting the requirements of good pleading.
Certainty to a common intent in pleading is essential to the due administration of justice, and it cannot be abolished. By certainty causes and issues are identified for the determination of jurisdiction, and thereby the protection of parties against repeated trials of the same case, the finality of elections of remedies, the comity of
By the adjudicated cases it appears that breaches of the duty of superintendence may take many various forms. Superintendence may cover the entire field of the master’s business. There may be negligence on the part of a superintendent in the adoption of an improper method of doing the work-in hand; the giving of improper directions with respect to particular details of the work; failing to furnish proper appliances; employing incompetent servants; allowing abnormally dangerous conditions to exist in the place of work; failing to give instructions under circumstances which indicate the propriety of doing so; failing to warn a servant of abnormal danger; or violating rules promulgated by the master. See 2 tabatt Mas. & Ser. § 687, where many illustrative cases are collected. Under the complaint in this case plaintiff might have proved any or all of the above-mentioned varieties of negligence. But their enumeration demonstrates the reason and necessity of the rule which requires the statement of facts, whereon issues can be joined, understood, and tried, in connection with the conclusion alleged.
In all the complaints under the statute which have passed muster in this court, so far as we are informed, not excepting Bear Creek Mill Co. v. Parker, supra, there have appeared averments designed and calculated to give the defendant at least an inkling of the facts constituting the particular character of negligence the plaintiff would undertake to prove at the trial. Thus
In Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 South. 445, a count under the first subdivision, averring that “the said railway from which the said engine was derailed at or near the point of derailment was defective,” was held good, the court saying that the term “railway” ivas used in the pleading merely to designate that from which the engine was derailed, and must in such use he construed as synonymous with “track.” But it has been held all along that counts under that subdivision of the statute must specify the defect in defendant’s ways, works, machinery, or plant of which they complain. — Whatley v. Zenida Coal Co., 122 Ala. 118, 26 South. 124; Whitmore v. Ala. Consol. Co., 164 Ala. 125, 51 South. 397, 137 Am. St. Rep. 31; T. C. I. Co. v. Smith, supra.
In Southern Car Co. v. Bartlett, 137 Ala. 237, 34 South. 20, relied upon by appellee, the count under the second division of the statute stated precisely what the superintendent had done, and wherein his negligence consisted, while those counts which were sustained
A considerable number of cases seem to fall indifferently under the second or third subdivision of section 3910, providing, respectively, for cases of negligence in the exercise of superintendence and cases in which the injured servant conforms to the orders or directions of another to whose orders or directions he is bound to conform. The two subdivisions are closély related, and decisions under one furnish a close analogy for cases under the other. In Reiter-Connolly Co. v. Hamlin, 144 Ala. 192, 40 South. 280, where a count under the third subdivision, alleging just what was done, and that it was done in obedience to particular instructions given by named agent of the defendant having authority in that behalf, was approved, the court, conforming its decision at once to the rule of Leach v. Bush and L. & N. R. R. Co. v. Jones, supra, said: The particular instructions given by Reiter are plainly stated, to wit, ‘to slacken said chain.’ This court has frequently held, in similar cases, that it is not necessary to aver in what particular or respect the orders or directions were negligent. The general averment that the orders ‘were negligently given’ covers the case.”
We have had many cases on this subject. Without intending to depart from the clear rule of any of them, intending rather to follow them according to their true import, thereby following the clear rule of Maddox v. Chilton Warehouse Co., supra, we hold the fourth count of the complaint in the present case fatally defective on apt demurrer, for the reason that it gave defendant no notice, even of a general character, of what act of negligence on the part of its superintendent the complaining party would offer evidence.
This case went to the jury on counts 1 and 4. The gist of count 4 has been stated, and for the further purposes of this appeal it will be treated as having stated a cause of action under the superintendence clause of the statute. Count 1 proceeded under the first clause, followed the language of that clause, and concluded with the averment that “said cleaver was old, unfit, unsafe, and defective.” By special instructions requested defendant reserved for review his contention that the evidence did not warrant a finding for plaintiff under either of these counts.
The evidence tended to show that plaintiff and a fellow servant were engaged in repairing an oil box on a slag car. To do this it was necessary to cut off the head of an iron or steel bolt. Plaintiff held the cutting edge of the cleaver against the bolt while his fellow was striking its head or thick end with a sledge hammer. Plaintiff held the cleaver by its handle, which was 2 or
Not the slightest reason appears in the evidence for suspecting the condition of the cleaver or its fitness for its designed use, when first brought into- defendant’s service less than a week before plaintiff was hurt. But at the time of plaintiff’s injury the cleaver was burred, and the only possible hypothesis suggestive of negligence on the part of defendant, for which it could be held responsible under the statute, was that this burring was a condition which made the use of the cleaver dangerous. Without dispute the testimony went to show that burring was an evidence of the tool’s original fitness for the use to which it was being put, and that on
But, whatever may be the true state of the case in respect to the condition of the cleaver on the day when plaintiff took it for the operation upon which he was engaged and at the moment of his injury, there was no ground for a finding that it was defective in any respect except that it was burred. That, if a defect at all, was an obvious defect. Plaintiff was experienced in his line of work, and he neither averred nor proved that he needed any instruction in the use of the cleaver. He testified that he knew it was dangerous to use the cleaver with the burrs on it. He also testified that it was his duty, if the tool got out of repair, to take it to the blacksmith shop and have it repaired. All the mechanic’s witnesses corroborated him as to that. True, he testified that the blacksmith never fixed the head of a cleaver while he was employed at defendant’s shop, and that he
The master is not required or expected to deal with his servant as with an automaton, as a person following a routine without intelligence. The servant may be expected to exercise some measure of intelligence and the instinct of self-preservation. It is a fair rule that ‘a servant assumes the risk of all dangers, however they may arise, against which he may protect himself by the exercise of ordinary observation and care.” —1 Labatt, Mas. & Ser. c. 4. In this case the servant was using a common tool of such sort that use inevitably produced and continually and rapidly added to the only defect the existence of which the evidence tended to prove. He was not put to the choice of using a defective instrumentality or quitting his employment. His duty was, if he did not choose to follow the frequent practice of mechanics by knocking off the burrs with a
Reversed and remanded.
Dissenting Opinion
dissents as to the ruling on count 4. His views are expressed in G.aliaba Goal Go. v. Elliott, infra, 62 South. 808. Dowdell, C. J., not sitting.