Smith v. Watkins & Donelson

• Decision Date: 18 May 1911
• Parties: SMITH v. WATKINS & DONELSON.
• Court: Alabama Supreme Court

55 So. 611

172 Ala. 502

SMITH v. WATKINS & DONELSON.

Supreme Court of Alabama

May 18, 1911

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Ben Smith against B. O. Watkins and J. E. Donelson, doing business under the firm name of Watkins & Donelson. From a judgment sustaining demurrer to the complaint, plaintiff appeals. Reversed and remanded.

The complaint is as follows: "Plaintiff claims of defendant $30,000 damages, for that on, to wit, May 24, 1910 plaintiff, while in the employ of defendant, and while engaged in the actual performance of the duties of said employment, was injured in Jefferson county, state of Alabama, as follows: The excavation in which plaintiff was at work fell in. [Here follows a catalogue of his injuries, with special damages; the injuries being alleged to be permanent.] Plaintiff avers that said injury was proximately caused by the negligence of the defendant, which negligence consisted in this: The defendant negligently failed to provide the plaintiff with a reasonably safe place for him to perform the duties of his employment in." The demurrers were that it fails to show the nature of the work in which plaintiff was engaged; also fails to show, except by way of conclusion that the defendant breached any duty on the plaintiff because the complaint shows on its face that the plaintiff was constructing the place in which he was working, and under such circumstances no duty as alleged in the complaint rested upon the defendant.

Denson & Denson, for appellant.

Ullman & Winkler, for appellee.

ANDERSON J.

While it is not the absolute and unqualified duty of the master under the common law, to furnish the servant a safe place in which to do his work, it is his duty to exercise reasonable skill and care to afford the servant a reasonably safe place within which to do his work, and under our system of pleading the averment that the master "negligently" failed to furnish or provide a reasonably safe place is the equivalent of averring that he failed to exercise reasonable skill and care to furnish a safe place, and is sufficient and the complaint in the case at bar meets the former rulings of this court, and was not subject to the defendant's demurrers. Gray Eagle Co. v. Lewis, 161 Ala. 417, 49 So. 859; Wolf v. Smith, 149 Ala. 460, 42 So. 824, 9 L. R. A. (N. S.) 338. The complaint in the instant case is unlike the counts condemned in the case of ...