Shelby Iron Co. v. Cole

• Decision Date: 30 November 1922
• Docket Number: 7 Div. 248.
• Citation: 95 So. 47,208 Ala. 657
• Parties: SHELBY IRON CO. ET AL. v. COLE.
• Court: Alabama Supreme Court

95 So. 47

208 Ala. 657

SHELBY IRON CO. ET AL. v. COLE.

7 Div. 248.

Supreme Court of Alabama

November 30, 1922

Rehearing Denied Jan. 18, 1923.

Appeal from Circuit Court, Shelby County; A. B. Foster, Judge.

W. M Cole sues the Shelby Iron Company and James C. Seale to recover damages for personal injuries. Judgment for plaintiff, and defendants appeal. Affirmed.

Leeper Haynes & Wallace, of Columbiana, for appellants.

Longshore Koenig & Longshore, of Columbiana, and Brown & Denson, of Birmingham, for appellee.

GARDNER J.

Appellee was injured while working for an independent contractor who was engaged in repairing machinery for appellant upon the premises of the latter, and recovered a judgment for the damages sustained, from which defendant prosecutes this appeal.

Plaintiff states his cause of action in two counts; the first resting for recovery upon the simple initial negligence of one Seale, the servant or agent of defendant, acting within the line and scope of his employment, in the operation of the elevator of defendant. Count 1 discloses that the plaintiff was rightfully upon the premises as an invitee of defendant, and the defendant owed him a duty of reasonable care to avoid injuring him. This count sufficiently discloses the relationship out of which this duty arose, and a negligent breach thereof. The more specific matters insisted upon by counsel would more properly arise upon the question of contributory negligence. Doullut & Williams v. Hoffman, 204 Ala. 37, 86 So. 73; M. & O. R. R. Co. v. George, 94 Ala. 199, 10 So. 145. There was no error in overruling the demurrer to this count.

It is next insisted there was error in sustaining demurrers to pleas 3 and A, which counsel for appellant state are pleas of assumption of risk. Pleas of this character arise out of contracts between the parties (Kansas City, M. & B. R. Co. v. Flippo, 138 Ala. 487, 35 So. 457), and, it would seem, are here inapt (Melton v. B. R. L. & P. Co., 153 Ala. 98, 45 So. 151, 16 L. R. A. [N. S.] 467). Moreover, for aught that appears in these pleas, the danger to which plaintiff was exposed was the result of negligence of defendant, which is never assumed. Bierley v. Shelby Iron Co. (Ala. Sup.) 93 So. 829.

Counsel for appellant argue there was error in sustaining demurrer to pleas 4, 5, 6, 7, and 8, which are pleas of contributory negligence, but demurrer was no sustained to plea 7. These pleas purport to be pleas of contributory negligence. Plea 7, to which demurrer was not sustained, sets up the same defense of contributory negligence as these other pleas, but carried with it none of the...