Mobile & B. Ry. Co. v. Holborn

• Decision Date: 02 May 1888
• Citation: 4 So. 146,84 Ala. 133
• Court: Alabama Supreme Court
• Parties: MOBILE & B. RY. CO. v. HOLBORN.

4 So. 146

84 Ala. 133

MOBILE & B. RY. CO. v. HOLBORN.

Supreme Court of Alabama

May 2, 1888

Appeal from city court of Mobile; O. J. SEMMES, Judge.

Action for personal injuries by George Holborn against the Mobile &amp Birmingham Railway Company. Judgment for plaintiff, and defendant appeals.

Gaylord B. Clarke, F. R. Clarke, Jr., and Le Vert Clarke, for appellant.

G L. & H. T. Smith, for appellee.

CLOPTON J.

This case brings for construction the act of February 12, 1885 entitled "An act to define the liabilities of employers of workmen for injuries received by the workman, while in the service of the employer," which, with some alterations in verbiage, is incorporated in section 2590 of the Code of 1886. Being in derogation of the common law, the inference is that the terms of the act clearly import the changes intended, and their operation will not be enlarged by construction further than may be necessary to effectuate the manifest ends. Notwithstanding, a narrow and restrictive view of the act should not be taken. In its construction the court should consider its objects, have regard to the intentions of the legislature, and take a broad view of its provisions commensurate with the proposed purposes. The doctrine that prevailed prior to its passage had been carried to an extent which met with disfavor; and the tendency of the legislation has been in many of the states to abrogate as to particular corporations, or to modify as to all masters or employers, the rules which had governed their non-liability. Our statute, as far as it goes, is a substantial copy of the English act, entitled the "Employers' Liability Act;" some of the provisions of which had previously received a judicial construction. Its enactment by the legislature in substantially the same language is persuasive of a legislative adoption of that construction. The act provides: "When a personal injury is received by a servant or employe in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employe, as if he were a stranger, and not engaged in such service or employment,"-in five specified classes of cases. The primary and general purposes of the statute is to abolish, in the specified cases, the rule which exempted employers from liability to answer in damages for an injury suffered by the negligence of a co-employe. When the employe who is injured and the employe whose negligence causes the injury are of the same grade, and as to all employes who do not come within either of the specified classes, the common-law rules still apply. Griffiths v. Earl of Dudley, 9 Q. B. Div. 357. The statute gives the employe a right of action in the enumerated cases as if he were one of the public suing, not a passenger, but rightfully and lawfully on the premises of the employer, and takes away the defense of common employment, which he previously had. The only qualification of the general liability imposed by the first clause, under the second and third subdivisions, is that provided by the subsequent provision, as follows: "But the master or employer is not liable under this section, if the servant or employe knew of the defect or negligence causing the injury, and failed within a reasonable time to give information thereof to the master or employer, or to some person superior to him engaged in the service or employment of the master or employer, unless he was aware that the master or employer, or such superior, already knew of such defect or negligence." This provision gives to the employer the defense that the employe knew of the defect or negligence, and failed to communicate the fact, which the employe can avoid only by showing that he was aware that the employer, or a superior in the employment, already knew of the defect or negligence. Proof of the latter fact is a full answer to the special defense thus given to the employer, who is not permitted to rejoin the employe's continuance in service after failure to remedy the defect or negligence in a reasonable time. If the master or employer is aware of the defect or negligence, he is answerable in damages. The effect is to take from the employer the defense that the employe impliedly contracted to assume the known and ordinary risks incident to the employment, and to give in lieu thereof, as a special defense, that the employe had knowledge of the defect or negligence, of which the employer is ignorant, and failed to give information thereof. But no liability arises under the statute for injuries caused by the known and ordinary risks of the employment, without negligence on the part of the employer, or of some person intrusted by him with superintendence or with authority to give orders or...