Standard Portland Cement Co. v. Thompson

• Decision Date: 07 November 1914
• Docket Number: 709
• Parties: STANDARD PORTLAND CEMENT CO. v. THOMPSON.
• Court: Alabama Supreme Court

67 So. 608

191 Ala. 444

STANDARD PORTLAND CEMENT CO. v. THOMPSON.

No. 709

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by J. Lucian Thompson against the Standard Portland Cement Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Charles A. Calhoun, of Birmingham, for appellant.

Mathews & Mathews, of Bessemer, for appellee.

McCLELLAN J.

Action for damages by the servant (appellee) against the master (appellant) for injuries sustained while in the service. The fourth count was the only count submitted to the jury. That count is drawn under the first subdivision of the liability statute (Code, § 3910), and ascribes the plaintiff's injury to a defect in the condition of a ladder, about 40 feet in length, from which plaintiff fell to the floor of the building. Under numerous decisions delivered here, some of which are noted on brief for appellee, the sufficiency of the count cannot now be the subject of question.

The court sustained demurrers to pleas 3 and 4. These pleas will be set out in the report of the appeal.

In the opinion, now in manuscript, in Burnwell Coal Co. v. Russ Setzer, as Administrator, 67 So. 604, Code 1907, § 3910 so far as presently important, is set out, and the addition made to the previous statute (Code 1896, § 1749) in the codification of 1907 is indicated by the use of italics. It is not necessary at this time to again quote the statute as it is now of force. And it may be added that a construction in part, of the present statute will be found in the opinion in the mentioned cause.

The statute must be construed as a whole; and, when so considered, it is apparent that error affected the sustaining of the demurrer to pleas 3 and 4. The statute, after the addition of the italicized feature in the Code of 1907, has not destroyed or affected the doctrine of assumption of risk or contributory negligence except in the single particular that those defenses, to an action under the first subdivision of the liability statute (Code, § 3910), cannot be predicated of the fact that the injured servant remained in the service of the master after he (servant) had knowledge of the defective condition or negligence to which in his complaint he attributes his injury, unless it was the injured servant's duty to remedy the defect, or the negligent act causing his...