Evans v. Alabama-Georgia Syrup Co.

• Decision Date: 23 November 1911
• Citation: 175 Ala. 85,56 So. 529
• Parties: EVANS v. ALABAMA-GEORGIA SYRUP CO.
• Court: Alabama Supreme Court

56 So. 529

175 Ala. 85

EVANS v. ALABAMA-GEORGIA SYRUP CO.

Supreme Court of Alabama

November 23, 1911

Appeal from City Court of Montgomery; William H. Thomas, Judge.

Action by L. B. Evans against the Alabama-Georgia Syrup Company for damages for personal injuries. From a judgment for defendant overruling demurrers to pleas, plaintiff appeals. Reversed and remanded.

Sayre J., dissenting.

The following pleas are referred to in the amendment: Plea 2 "For further answer to the complaint, and separately and severally to each count thereof, this defendant says that the plaintiff proximately contributed to the injury of which he complains, in that while in said building he negligently or carelessly stepped into the alleged hole or opening, thereby causing the injury of which he complains." Plea 3 (to each count separately and severally): "That the plaintiff proximately contributed to the injury of which he complains in this: That the hole or opening into which he fell was an elevator shaft or opening constructed by the defendant and used in the operation, management, and conduct of its said business. That said elevator shaft or opening was in a large and well-lighted building, and easily seen by persons or parties therein, exercising reasonable care. And defendant avers that plaintiff while in said building in the daytime, and while said building was well lighted--the said elevator shaft or opening could, by the exercise of reasonable care, have been easily seen and avoided--negligently or carelessly walked or stepped into said opening or hole, and thereby caused the injury of which he complains." Plea 4 (to each count separately and severally): "That the hole or opening into which plaintiff is alleged to have fallen was the elevator shaft or opening constructed by defendant for and in use in a private warehouse or storeroom of defendant, and near the rear end thereof. That said warehouse was well lighted when the alleged injury occurred, and said elevator shaft could have been easily seen and avoided by any one using due and reasonable care; and defendant avers that the plaintiff while in said building failed to exercise reasonable or ordinary care to avoid the said shaft or opening, and carelessly walked or stepped into the same, and thereby and as a proximate consequence thereof received the injury of which he complains." The first count alleged the existence of the dangerous hole or opening, and the failure to warn plaintiff of its existence. The second count alleged the duty on the defendant to guard or secure the approach to the hole. The third count alleged the duty of the defendant to use proper diligence in keeping the premises in reasonably safe condition, and its failure to do so. The other counts amplify the first three.

Hill Hill & Whiting, for appellant.

Steiner, Crum & Weil, for appellee.

SAYRE J.

All the Judges, except myself, concur in the opinion that the second plea was bad as being a mere conclusion of the pleader, and that the judgment ought to be reversed for error in overruling the demurrer to that plea. They cite T. C. I Co. v. Herndon, 100 Ala. 451, 14 So. 287; Osborne v. Ala. S. & W. Co., 135 Ala. 571, 33 So. 687; So. Ry. v. Shelton, 136 Ala. 191, 34 So. 194; So. Ry. v. Hundley, 151 Ala. 378, 44 So. 195. I dissent. In my judgment the pleas numbered 3 and 4 are no better in any respect than plea 2, and they all alike submitted to the jury a perfectly intelligible and meritorious issue of fact. It cannot be true in every case that a plea of contributory negligence must aver a state of facts to which the law attaches the conclusion of negligence. "The judge has to say whether any facts have been (averred...