Frederick v. Coosa Pipe & Foundry Co.
| Decision Date | 14 May 1912 |
| Citation | 59 So. 702,6 Ala.App. 310 |
| Court | Alabama Court of Appeals |
| Parties | FREDERICK v. COOSA PIPE & FOUNDRY CO. |
Appeal from Circuit Court, Etowah County; J. E. Blackwood, Judge.
Action by Alf Frederick against the Coosa Pipe & Foundry Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.
McCord, Roper, Inzer & Stephens, of Gadsden for appellant.
Hood & Murphree, of Gadsden, for appellee.
The complaint as originally filed contained three counts, and ten other counts were added by amendment. The court sustained demurrers to all the counts except the fourth, ninth twelfth, and thirteenth.
Whether or not the first count was subject to the demurrer interposed to it, the plaintiff could not have been prejudiced by the action of the court in sustaining that demurrer, as under the fourth count he had the benefit of substantially the same alleged ground of recovery. In no material respect was the burden of proof assumed by the plaintiff by his averments more onerous under the latter count than it was under the former.
The demurrer to count 2 was properly sustained because of the failure of that count to state the name of the person in the service or employment of the defendant who was alleged to have had superintendence intrusted to him by the defendant and to have been negligent while in the exercise of such superintendence, or to aver that the name of such person was unknown to the plaintiff. Woodward Iron Co. v. Herndon Adm'r, 114 Ala. 191, 21 So. 430.
Counts 3, 7, and 8 were subject to demurrer, because each of them undertook to charge the defendant with an unqualified duty to furnish the plaintiff a safe place in which to work. The duty in that regard which the law imposes upon an employer is not an unqualified one, but is met when reasonable care and skill are exercised to furnish a reasonably safe place for the performance of the duties assigned to the employé. Merriweather v. Sayre Mining & Mfg. Co., 161 Ala. 441, 49 So. 916. Besides, under counts 12 and 13, the plaintiff had the benefit of evidence tending to show that the defendant was guilty of a breach of its duty to him in reference to the safety of his place of work.
Counts 5, 6, 10 and 11 each show that the proximate cause of the injury complained of was a defect in the condition of the plant of the defendant; and each of them was subject to demurrer because of its failure to aver that such defect arose from, or had not been discovered or remedied owing to, the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition. Code, § 3910. It is true that each of those counts mentions, as a cause of the injury complained of, negligence of an employé of the defendant, who was intrusted with superintendence, while in the exercise of such superintendence; but when it comes to a specification of the efficient cause to which the injury was attributed a defect in the condition of the plant is plainly averred to have been its proximate cause.
In two of the counts upon which the plaintiff went to trial, the defendant was charged with liability under subdivision 1 of the Employer's Liability Statute (Code, § 3910); while under the remaining counts the defendant was sought to be held liable because of its alleged failure to use reasonable care in furnishing the plaintiff a reasonably safe place in which to perform his work, and because of its alleged failure to use reasonable care in maintaining for the plaintiff a reasonably safe place in which to perform his work. The negligence charged in each of the counts was in reference to the condition of the lighting plant of the defendant, which was used and operated in its business. If there was evidence tending to support the charge of negligence made in either of the counts, the court was not warranted in sustaining the defendant's motion, made at the conclusion of the evidence offered by the plaintiff, to exclude that evidence. It is suggested in behalf of the appellee (the defendant below) that there was an absence of evidence tending to show that the defendant was the plaintiff's employer, or that it had any connection with the operation of the plant in which the plaintiff was at work at the time he was injured. This suggestion cannot be sustained. It is true that there is some room for a contention that the probative value of the statements made by the plaintiff on his direct examination as a witness in his own behalf, to the effect that he was employed by the defendant and was working at its shop at the time he was hurt, was destroyed by the answers made by him to questions asked on his cross-examination, which sought to bring out the grounds upon...
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