Doss v. Wadsworth Red Ash Coal Co.

• Citation: 64 So. 341,185 Ala. 597
• Parties: DOSS v. WADSWORTH RED ASH COAL CO.
• Decision Date: 22 January 1914
• Court: Supreme Court of Alabama

64 So. 341

185 Ala. 597

DOSS v. WADSWORTH RED ASH COAL CO.

Supreme Court of Alabama

January 22, 1914

Appeal from Circuit Court, Shelby County; Hugh D. Merrill, Judge.

Action by A.M. Doss against the Wadsworth Red Ash Coal Company. From a judgment granting a new trial after verdict for plaintiff plaintiff appeals. Affirmed.

The first count is predicated on Code, § 3910, subd. 1, in that in a certain entry of the mine rock and slate fell upon plaintiff, injuring him, because the roof of said entry was not properly timbered. The second count is based upon the negligence of Dok Kennedy, who had superintendence intrusted to him, while in the exercise of such superintendence, in that he negligently failed to prop up or cause to be propped up a roof of said entry, wherefore the rock and slate fell injuring him. Count 3 is based upon the same acts of negligence, which are attributed to one Harwell, whose name is declared to be otherwise unknown. The fourth count, which was withdrawn, is based upon the failure to furnish a safe place for plaintiff to do his work.

Plea 11 is as follows: "To each count of the complaint separately and severally, plaintiff was guilty of negligence which proximately contributed to cause his said alleged injuries in this: He was aware of the particular danger which caused his injury, and of the defect in the defendant's alleged ways, works, machinery, plant, etc., and with such knowledge nevertheless went in close and dangerous proximity to said dangers and said alleged defect, knowing at the time that he would likely or probably be injured, and as a proximate consequence of such negligence sustained his said injury."

Riddle & Ellis, of Columbiana, and Perdue & Cox, of Birmingham, for appellant.

J.T Stokeley and R.H. Scrivner, both of Birmingham, for appellee.

McCLELLAN J.

The action is by the appellant against the appellee. The verdict was for the plaintiff. Upon the hearing of the motion for new trial, the court set aside the verdict and judgment. It is to review that action this appeal is prosecuted by the plaintiff.

There were four counts in the complaint. The fourth was withdrawn pending the trial. The first count was framed under the first subdivision of the liability act. Code 1907, § 3910. The second and third counts were drawn under the second subdivision of the liability act. The defenses relied on, aside from the general traverse of the counts, were contributory negligence and assumption of risk. Among other pleas was that numbered 11. The report of the appeal will contain it. It does not appear to have been assailed by demurrer, or otherwise. As appears, this plea was addressed to the counts of the complaint "separately and severally." The amendment of the complaint by striking out or withdrawing count 4 did not require the refiling of this or any other pleas that were distinctively addressed to each separate count of those left in the complaint after count 4 was stricken or withdrawn. Such is the rule with respect to demurrers. B.R., L. & P. Co. v. Fox, 174 Ala. 657, 668, et seq., 56 So. 1013. We see no reason why a different principle should govern when the whole effect of the amendment is to eliminate a distinct count. The judgment entry recites: "Whereupon the plaintiff withdrew its demurrer to plea No. 9, and the defendant withdrew plea No. 7. Whereupon the defendant, by leave of the court, filed to the complaint plea No. 11, as shown by separate paper writing on file. Whereupon on plaintiff withdrew demurrer to pleas 2 and 4 of the defendant, and whereupon, after the evidence was all in, the plaintiff amended his complaint by striking therefrom count No. 4. Whereupon issue was joined on counts Nos. 1, 2, and 3 of the complaint as constituting the complaint as last amended. Whereupon came a jury," etc.

This court has adopted the rule that the judgment entry is, when clear in its...