Osborne v. Alabama Steel & Wire Co.

• Decision Date: 12 February 1903
• Citation: 135 Ala. 571,33 So. 687
• Court: Alabama Supreme Court
• Parties: OSBORNE v. ALABAMA STEEL & WIRE CO.

33 So. 687

135 Ala. 571

OSBORNE v. ALABAMA STEEL & WIRE CO.

Supreme Court of Alabama

February 12, 1903

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by Helen Osborne, as administratrix of the estate of Arthur E. Osborne, deceased, against the Alabama Steel & Wire Company, to recover damages for the death of plaintiff's intestate. From an order overruling demurrers to defendant's pleas and a judgment for defendant, plaintiff appeals. Reversed.

The complaint was in six counts. The first count attributed the death to a defective condition of defendant's premises in that its waterway was not sufficiently covered to make its said premises safe. Counts 2, 3, 4, and 5 attributed the injuries and death to the negligence of certain employés having superintendence intrusted to them, whilst in the exercise of such superintendence. Count 6 alleged a breach of duty in that defendant negligently failed to provide reasonably safe premises for plaintiff's intestate to work, by suffering said waterway to become and remain partially uncovered, thereby rendering said premises unsafe and insufficient to protect plaintiff's intestate from falling into said waterway in passing along or over the same.

Demurrers to the complaint having been overruled, defendant interposed eight pleas, namely: (1) A plea of not guilty. (2) That plaintiff's intestate was himself guilty of negligence at and before the time of receiving the injuries complained of which proximately contributed thereto, in this: that, knowing that the water in the said waterway in said complaint mentioned was hot, and knowing that it was dangerous to attempt to cross the same at the time and under the circumstances at and under which he did attempt to cross it he negligently did attempt to cross said waterway, and in so attempting to cross the same he fell into said waterway, and thereby received and suffered the injuries complained of. (3) That plaintiff's intestate was guilty of contributory negligence which proximately contributed to his death, in that he, knowing that said waterway was there, and knowing that it contained hot water, and knowing that it was not always covered at the place where he attempted to cross the same, but that at times it was left uncovered, negligently attempted to cross said waterway at a time and place where it was uncovered, and when steam was arising therefrom, which prevented his seeing whether said waterway was or was not covered, or rendered it difficult for him to determine whether it was or was not covered, without taking due care to ascertain whether it was or was not covered, and thereby fell into said waterway, causing the injuries which resulted in his death. (4) That plaintiff's intestate was guilty of negligence which proximately contributed to his death, in this: that he negligently attempted to pass over said waterway, knowing that it was there, and that it contained hot water, and at a time and place and under circumstances that rendered it dangerous for him to attempt to cross said waterway, all of which he knew, or could have known by the exercise of due care, when there was another and safe way for him to have gone from the place where he started to the place where he intended to go, which was known to him, which other and safe way did not lead across said waterway. (7) That plaintiff's intestate was himself guilty of negligence which proximately contributed to his alleged injuries, in this: said intestate, with knowledge or notice of the facts alleged in said complaint, nevertheless continued in the service or employment of the defendant in the capacity therein alleged in said complaint. (8) That plaintiff's intestate himself voluntarily assumed the risk of his said injuries, in this: said intestate, with knowledge or notice of the condition of said waterway and of the danger thereof nevertheless continued in the service or employment of the defendant in the capacity alleged in the said complaint.

The plaintiff demurred to plea 3 upon the following grounds "(1) Because said plea does not deny the allegations of the complaint, nor does it confess and avoid the same; (2) because said plea does not aver or show that plaintiff's intestate knew that said waterway was partially or wholly uncovered; (3) because said plea does not aver or show that the waterway had been uncovered long enough to put plaintiff's intestate on notice that defendant intended to and would leave the same uncovered; (4) because said plea does not aver or show that plaintiff's intestate knew or had notice that the waterway was uncovered at the time he fell into the same; (5) because said plea does not aver or show that said waterway was usually covered, and that plaintiff's intestate was aware of that fact." The same grounds of demurrer were interposed to the fourth plea, and the following additional grounds: "(6) Because said plea does not set out the circumstances that rendered it dangerous for plaintiff's...