Gray Eagle Coal Co. v. Lewis

• Decision Date: 24 May 1909
• Citation: 49 So. 859,161 Ala. 415
• Parties: GRAY EAGLE COAL CO. v. LEWIS.
• Court: Alabama Supreme Court

49 So. 859

161 Ala. 415

GRAY EAGLE COAL CO. v. LEWIS.

Supreme Court of Alabama

May 24, 1909

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by George Lewis against the Gray Eagle Coal Company for injuries to plaintiff while employed in defendant's mine by an explosion of gas. Judgment for plaintiff, and defendant appeals. Affirmed.

Count 4 avers the duty of the defendant to employ safe, fit, and competent persons or servants to carry on its said business and that defendant negligently failed to perform his said duty in this, to wit, it had in its employment one Foster whose name is to the plaintiff now otherwise unknown, and to whom was intrusted the duty of inspecting and seeing that plaintiff's place of work was free from gas and safe. It further charges incompetency and unfitness of Foster, of which defendant had notice, or by the exercise of reasonable care could have known, and as a consequence the plaintiff's injuries, etc. The demurrer to this count takes the point that said count does not allege or show wherein or in what manner defendant negligently failed to perform its duty to plaintiff, or in what manner and how said Foster was incompetent and unfit for the duties to plaintiff with which he was charged, and how said Foster negligently failed to inspect plaintiff's said place of work.

E. C Crow and Cabaniss & Bowie, for appellant.

Stallings & Drennen, for appellee.

SAYRE J.

That part of count 5 material to be here noted charged that the "defendant negligently failed to furnish plaintiff with a reasonably safe place to work." The demurrer was that the count failed to allege or show how or wherein defendant negligently failed to furnish a safe place. This manner of averment, though little more than a mere conclusion, has often been held to satisfactorily meet the requirements of our system of pleading. Ga. Pac. Ry. v. Davis, 92 Ala. 300, 9 So. 252, 25 Am. St. Rep. 47; Mary Lee Coal Co. v. Chambliss, 97 Ala. 171, 11 So. 897; Armstrong v. Street Ry., 123 Ala. 233, 26 So. 349; L. & N. R R. v. Marbury, 125 Ala. 237, 28 So. 438, 50 L. R. A. 620. Like considerations dispose of the single objection taken by the demurrer to count 4 of the complaint.

In three of the four counts upon which the case was tried plaintiff's injury is attributed to the negligence of "to wit, one Foster, whose name is now otherwise unknown to plaintiff." In the evidence there is...