Alabama Great Southern R. Co. v. Flinn

• Decision Date: 15 February 1917
• Docket Number: 6 Div. 322
• Citation: 74 So. 246,199 Ala. 177
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. FLINN.
• Court: Alabama Supreme Court

74 So. 246

199 Ala. 177

ALABAMA GREAT SOUTHERN R. CO. v. FLINN.

6 Div. 322

Supreme Court of Alabama

February 15, 1917

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by J.M. Flinn against the Alabama Great Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A.G. &amp E.D. Smith, of Birmingham, for appellant.

Smith &amp Wilkinson and Harsh & Fitts, all of Birmingham, for appellee.

MAYFIELD J.

Appellee a mechanic employed by appellant in its machine shops, sues appellant to recover damages for personal injuries, the loss of an eye, and other damages. The trial was had on two counts, one drawn under the second subdivision, and the other under the third subdivision, of the Employers' Liability Act (Code 1907, § 3910). The two allegations of negligence are, respectively, as follows:

"Cliff Adams, who on behalf of defendant had superintendence intrusted to him by defendant, negligently whilst in the exercise of such superintendence negligently caused or allowed said object to be thrown or propelled upon or against plaintiff on the occasion aforesaid, and as a proximate consequence of said negligence plaintiff suffered said injuries and damage."

"Cliff Adams, who was in the service or employment of defendant and to whose orders or directions plaintiff was bound to conform, negligently ordered or directed plaintiff to plane or cut metal, to wit, said truck bolster on or by means of said planer, and plaintiff did conform to said order and direction of said Adams, and as a proximate consequence of so conforming to said negligent order plaintiff suffered said injuries and damage.

The sufficiency of the last count was challenged by demurrer, but the count was held sufficient, and that ruling is here insisted upon as error to reverse. In the opinion of the writer this count is wholly insufficient; but the later rulings of this court have established a rule as to sufficiency of counts like the one in question, which authorizes the ruling of the trial court. The views of the writer on this subject were set out at some length in the case of Louisville & Nashville Railroad Co. v. Barganier, 168 Ala. 567, 53 So. 138. In that case the whole and sole allegation as to negligence on the part of the servant giving the order was that one Kirby, who gave the order, "negligently" ordered plaintiff to come where he, the said Kirby, was upon an engine. The majority held the allegation sufficient as to negligence. In the case of Republic Iron & Steel Co. v. Williams, 168 Ala. 617, 53 So. 76, the allegation as to negligence in the giving of the order was:

"Negligently ordered or directed plaintiff to go into said furnace without properly and sufficiently warning or informing plaintiff as to said gas or liquid."

The majority of the court held the allegation sufficient to show negligence in the giving of the order. The majority held the allegation sufficient, without the averment of failure to warn of the existence of the dangerous gas or liquid in the furnace; that is, that the allegation that the superior servant ordered the inferior "to go into a furnace" was sufficient to charge actionable negligence against the master. The majority had, before those two cases, held, and have since held, similar allegations sufficient. While the writer is yet of the opinion that these rulings are wrong, and that they destroy all the efficacy of pleadings in such cases, yet it is a matter or question of practice, and no good can come of the writers' further dissenting, and hence he yields to the inevitable.

Plea 8 was interposed as a defense to each count, and a demurrer thereto was sustained, and of this ruling the defendant next complains. The plea was as follows:

"That plaintiff was guilty of negligence which proximately contributed to his own injury in this: That he knew, or in the exercise of due care ought to have known, that it was dangerous to do the kind of work in which he was engaged when injured on the planer, and that the same was a danger obvious to him, yet nevertheless plaintiff did said work on said planer, and in consequence thereof was injured."

This plea will be seen to contain alternative averments. It must therefore be tested by its weakest averment, viz., that plaintiff "ought to have known that it was dangerous" to do the work ordered to be done by him, and that he ought to have known it was an obvious danger.

It may be true that the plea is susceptible of the construction that the phrase, "ought to have known," refers only to the dangerous character of the work ordered to be done, and not to the allegation that it was obviously dangerous to do the work ordered to be done; but it is also susceptible of the construction that the quoted phrase applies to both, and it must be construed against the pleader. So construing it, the plea was bad, and subject to the demurrer.

The law as to the question sought to be raised by the plea, in the different phases in which it is usually presented, was well stated in the case of Woodward Iron Co. v. Wade, 192 Ala. 651, 68 So. 1008. It is there said:

"It must have been reasonably apparent to the master, or his vice principal who gave the order, under the conditions as he knew or ought to have known them, that the servant's execution of his command would expose the servant to some peril, beyond the ordinary risks of his service, and against which ordinary and reasonable care on his part would probably not suffice to protect him. See 1 Labatt on M. & S., § 347.

"(2) If this peril was obvious to the servant, and might readily be avoided by him while fully discharging his duty of service in conformity with the order given him, the master had the right to assume that the servant would both observe the peril and avoid it; and the order was not negligently given. Davis v. Western Ry. of Ala., 107 Ala. 626, 633, 18 So. 173.

"(3) If, on the other hand, the peril was not obvious, but was inherent in the conditions necessarily surrounding the servant while executing the master's order (conditions which the master could and should have known, and of which, if not remedied, the servant could expect the master to seasonably inform him), the master's order, without such warning, was negligent and actionable. 1 Labatt on M. & S. 437."

Here it was not clearly and certainly alleged by the plea that the peril or danger involved in obeying the order was obvious to the plaintiff; it was only alleged (construing the plea against the defendant), that the plaintiff, by the exercise of reasonable care, ought to have known that the danger or peril of so obeying the order was obvious. Moreover, the danger or peril, if any existed, which made it actionable negligence to give the order in this case as alleged, and to which allegation the plea was intended to be an answer, must have been "inherent in the conditions necessarily surrounding the servant while executing the master's order." The mere fact that a servant knows, much less that he ought to know, that the work he is doing or is ordered to do is dangerous, or is attended with danger, standing alone, does not make the servant guilty of contributory negligence such as to bar his recovery on account of actionable negligence of the master or of one of his servants, even in giving the order to do the particular work. The danger and peril of doing the work or thing must be obvious, and one which an ordinarily prudent servant would not undertake to risk, even if ordered so to do by the master or by a servant for whose orders the statute makes the master liable. Mr. Labatt thus states the rule:

"Upon general principles it is manifest that, although the servant may have been directly commanded or urged to undertake the work from which the injury resulted, he cannot claim an indemnity where the danger to be encountered was at once so obvious and so serious that no prudent man would have incurred it. That is to say, the order

must, if it is to serve as a justification, be a matter with regard to which the servant has a right to rely on the superior judgment of the master.

"The courts decline to lay down a rule of law purporting to define accurately how dangerous a proposed action would have to be before a servant receiving an order from his master to perform it would be required to disobey under pain of being chargeable with negligence. But where there is no dispute as to the facts, and the dangers of obedience to an order are as apparent to the servant as to the employer's representative, there is no occasion to go to the jury to determine whether the servant should have obeyed the order." Master & Servant, vol. 1 (1st Ed.) § 442, p. 1254. " 'The servant does not stand on the same footing with his master. His primary duty is obedience, and if, when in the discharge of that duty, he is damaged through the neglect of the master, it is but meet that he should be recompensed.' This essential inequality in the positions of the parties is deemed to warrant the deduction that 'a prudent man has a right, within reasonable limits, to rely upon the ability and skill of the agent in whose charge the common master has placed him, and is not bound, at his peril, to set his own judgment above that of his superior.' " Id., § 440, p. 1242.

This plea, of course, involves the doctrine of volenti non fit injuria, as applied to the Employers' Liability Act.

The decisions of this court have not been uniform on the subject but have oscillated considerably, sometimes going to the extent of overruling themselves repeatedly. The subject was first raised and decided in the case of Eureka Co. v. Bass, 81 Ala. 200, 8 So. 216, 60 Am.Rep. 152; that decision was overruled by Holborn's Case, 84 Ala. 133, 4 So. 146; and the later decision was...