Smith v. Kennedy

• Decision Date: 15 April 1926
• Docket Number: 6 Div. 616
• Citation: 214 Ala. 427,108 So. 564
• Parties: SMITH v. KENNEDY.
• Court: Alabama Supreme Court

108 So. 564

214 Ala. 427

SMITH v. KENNEDY.

6 Div. 616

Supreme Court of Alabama

April 15, 1926

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action for damages for personal injuries by Warren Kennedy against W.M. Smith. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326 Affirmed.

Wright & Clark, of Tuscaloosa, for appellant.

Foster Rice & Foster, of Tuscaloosa, for appellee.

GARDNER J.

Appellee recovered a judgment against appellant in this action for damages sustained while working in a well being dug on defendant's premises. The cause was tried before the court without a jury.

It is first insisted there was error in overruling demurrer to the complaint.

The two counts of the complaint are based upon the common-law liability of defendant to furnish to plaintiff, the employee reasonably safe appliances. Huyck v. McNerney, 163 Ala. 244, 50 So. 926. Each count contains the expression that it was "the duty of defendant to furnish safe appliances for said work," rather than the correct qualifying statement, "reasonably safe appliances." It is therefore insisted that these counts were subject to the demurrer interposed thereto. But we are of the opinion the facts alleged in these counts sufficiently show the relationship, the duty arising therefrom, and a negligent breach thereof, all without regard to the incorrect legal conclusion of plaintiff, above noted.

The complaint discloses that plaintiff was employed by defendant to dig the well, and was at the bottom of the well engaged in the work when the bucket used in drawing out the earth fell upon him, breaking his leg; that the bucket fell on account of the rope breaking; that the rope broke as a result of being "old and worn and of not sufficient strength safely to sustain the weight of said bucket," as alleged in count 1, or as in count 2, as a result of the rope being "old, worn, and frazzled"; that defendant knew or should have known the condition of said rope, and negligently used or allowed the same to be used in drawing earth from the well, and the injury to plaintiff followed as a proximate re-suit of such negligence.

We think the facts alleged sufficiently show a breach of the common-law duty on the part of defendant to furnish a reasonably safe appliance for the work, and no necessity existed for the statement thereof by way of legal conclusion. Wells v. Gallag, her, 144 Ala. 363, 39 So. 747, 3 L.R.A.(N.S.) 759, 113 Am.St.Rep. 50; B.R.L. & P. Co. v. Adams, 146 Ala. 267, 40 So. 385, 119 Am.St.Rep, 27, 21 R.C.L. 440-442. The complaint being otherwise sufficient, the incorrect legal conclusion therein stated may be considered as surplusage, and as not materially affecting the pleading. 31 Cyc. 102. Reliance is had by appellant's counsel upon Huyck v. McNerney, supra, wherein the court treated count 1 of the complaint. In that case, however, there were no facts alleged as to the condition of the ladder, but only reference thereto as unfit, unsafe, and the like, while here the character of defect was pointed out as well as conditions would permit. There was no reversible error, in overruling the demurrer to the complaint.

It is next urged that defendant was entitled to a judgment as a matter of law from the undisputed proof upon the defense of assumption of risk and contributory negligence. The argument rests upon the proof that the defective condition of the rope was known to plaintiff, and he nevertheless proceeded with the work, citing Gainer v. So. Ry. Co., 152 Ala. 186, 44 So. 652; Woodward Iron Co. v. Marbut, 183 Ala. 310, 62 So. 804, among other authorities.

But this argument overlooks that portion of the evidence for plaintiff to the effect that upon discovery of the defect in the rope defendant undertook to remedy the same by tying a knot in the rope and then assuring plaintiff that it was all right; "to go on down in the well, *** there wasn't a bit of danger in it," to use the language of the witness. The principle of law applicable under these circumstances is stated in Bice v. Steverson, 205 Ala. 576, 88 So. 753, in the following language:

"In such cases the master and servant do not stand on an equal footing. The duty of obedience and the right to rely within reasonable limits upon the skill and judgment of the master or his superintendent, presumptively superior to his own, combine to temper the ordinary promptings of prudence and care, and the servant is not bound at his peril to set his own judgment above that of his superior. Ala. S. & W Co. v. Tallant, 165 Ala. 521,

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