Herren v. Tuscaloosa Waterworks Co.

• Decision Date: 09 May 1905
• Citation: 40 So. 55
• Parties: HERREN v. TUSCALOOSA WATERWORKS CO.
• Court: Alabama Supreme Court

40 So. 55

HERREN v. TUSCALOOSA WATERWORKS CO.

Supreme Court of Alabama

May 9, 1905

Appeal from Tuscaloosa County Court; Daniel Collier, Judge.

"Not officially reported."

Action by L. L. Herren against the Tuscaloosa Waterworks Company. Judgment for defendant, and plaintiff appeals. Reversed.

For prior report, see 131 Ala. 81, 31 So. 444.

Henry A. Jones and Robison Brown, for appellant.

Henry Fitts, for appellee.

DOWDELL J.

This is an action for the recovery of damages for personal injuries received by the plaintiff, resulting from alleged negligence of the defendant or its superintendent. The suit is by an employé of the defendant company, and is based on the employer's liability statute.

The complaint contained 18 counts. To all of these counts except the fifth, sixth, seventh, and eighth, the court sustained demurrers interposed by the defendant, and this action of the court constitutes the first assignment of error. The insistence of counsel for appellant on this assignment can hardly be regarded as serious, and we might pass it with the general statement that the assignment is without merit. We will therefore refrain from a discussion of all the objections raised to these counts by the demurrers, and content ourselves with the statement of one or more mentioned in briefs of counsel of appellee, with authorities there cited.

As stated in brief of counsel, the first, second, eleventh twelfth, fifteenth, and sixteenth counts are predicated upon the averment and charge that the railing or balustrade of the steps "was dangerous and defective, in that the same was entirely too low to safely protect and prevent one from falling over the same while descending the said stairway." The third fourth, thirteenth, fourteenth, seventeenth, and eighteenth counts are predicated upon the averment that the top step of the stairway "was dangerous because it was not a sufficient or proper step, in that the same was entirely too narrow, and not wide enough for a man's feet to be placed thereon, while he was walking so as to safely sustain his weight, without slipping or falling off the same." It does not appear but that the alleged defects were fixed and permanent parts of the plant, and sufficient for the purposes and for the safety of the defendant's employés, if used with ordinary care, and the dangers incident to which were plainly to be seen by any one undertaking to use the stairway. The hazard was an obvious one incident to the employment, and the risk of which the plaintiff in law assumed in accepting and entering into the service. L. &amp N. R. R. Co. v. Stutts, 105 Ala. 368, 17 So. 29, 53 Am. St. Rep. 127; R. & D. R. R. Co. v. Bivins, 103 Ala. 142, 15 So. 515; Mary Lee Coal & Ry. Co. v. Chambliss, 97 Ala. 171, 178, 11 So. 897; M. & O. R. R. Co. v. George, 94 Ala. 199, 218, 10 So. 145; Holland v. T. C. I. & R. Co., 91 Ala. 444, 8 So. 524, 12 L. R. A. 232; L. & N. R. R. Co. v. Orr, 91 Ala. 548, 554, 8 So. 360. The employer is not an insurer of the employé's safety, but fulfills his duty if the place provided is reasonably safe for the employé to work in, in the exercise of due care upon the part of the latter. L. & N. R. R. Co. v. Allen's Adm'r, 78 Ala. 494.

Where counts charge wantonness or willfulness on the part of the defendant's employés, and set out facts from which it is evident that the acts of the defendant's employés complained of amounted to no more than simple negligence, such counts are demurrable for repugnance and inconsistency. The eleventh, twelfth, thirteenth, fourteenth, fifteenth, and eighteenth counts were open to this ground of demurrer. Central of Ga. R. R. Co. v. Foshee, 125 Ala. 199, 27 So. 1006.

The ninth and tenth counts of the complaint, apart from consideration of other objections raised by the demurrer, were open to the first ground of the demurrer, in the failure to allege the name of the person giving the particular instruction, or to allege the plaintiff's ignorance of the name of that person. C. of G. R. R. v. Lamb, 124 Ala. 172, 26 So. 969; M. & O. R. R. Co. v. George, supra; McNamara v. Logan, 100 Ala. 187, 14 So. 175; So. Ry. Co. v. Cunningham, 112 Ala. 496, 20 So. 639; Woodward Iron Co. v. Herndon, 114 Ala. 191, 21 So. 430.

The second and third assignments of error relate to the ruling of the court on demurrers to the plaintiff's special replication to the defendant's pleas. It is shown by the record that in the introduction of evidence the plaintiff was allowed by the court, under his general reply to the pleas to make proof of the matters set up in the replications to...