Maddox v. Chilton Warehouse & Mfg. Co.

SOMERVILLE, J.

The complaint is for an injury to plaintiff’s hand and arm, suffered while operating a cotton gin for the defendant company. The first count is framed under subdivision 1 of the employer’s liability act (Code 1907, § 3910), and charges a defect in the gin; while the second, third, and fourth counts are framed under subdivision 2, and charge the negligence of a servant of defendant who was intrusted with superintendence. The second and fourth designate T. P. McElderry, and the third G. T. McElderry, as such superintending servant.

1. In order to recover under the first count, the plaintiff was, of course, bound to prove its- averment that “the said defect arose from or. had not been discov *221 ered or remedied owing to the negligence of said defendant or employer, or of some person intrusted by defendant with the duty of seeing that the ways, works and machinery or plant of said defendant were in proper con dition.” — Columbus & Western R. Co. v. Bradford, 86 Ala. 580 , 6 South. 90 . As a defense to this count the defendant answered by plea 6 that at the time of the injury complained of the plaintiff himself was the agent who was intrusted by defendant with the duty of seeing that the gin alleged to be defective was in proper condition, and that plaintiff undertook to perform such duty. Thus the language of the plea in connection with the language of the complaint shows that the master was by contract specifically relieved of the duty, otherwise owed to the servant, of furnishing him with machinery safe for operation by him, and under such a contract the servant could not look to the master to discharge a duty that was devolved upon himself, but must be held to have assumed the risk of injury incident to the operation of the gin if not put in a proper condition.

The theory of the complaint is that reasonable care on the part of the master would have discovered the alleged defect; and if such was its character as thus predicated, the plea need not allege that the defect would have been discovered by the plaintiff had he discharged his duty, nor that the plaintiff was negligent in the discharge of his duty, for it must be conclusively presumed that he would have discovered it. Nor is it necessary to allege in specific terms that the alleged injury was the proximate result of plaintiff’s negligent performance of the duty imputed to him by the plea. The plea, which we treat as a plea of assumption of risk, and not of contributory negligence, was not subject to any of the grounds of demurrer specified. This ruling is not in conflict with the principle that the master cannot on considera *222 tions of public policy stipulate that his servant must look out and be responsible generally for his own safety, as held in L & N. R. Co. v. Orr, 91 Ala. 544 , 8 South. 360 ; for it was ruled in that very case that if the character of the servant’s employment was such as to devolve upon him the duty of examining and seeing that the particular material and appliances were in proper condition, and the injury arose from his failure to do so, he would be guilty of contributory negligence, and could not recover. 91 Ala. 554 , 8 South. 360 . To the same effect are M & C. R. Co. v. Graham, 94 Ala. 556 , 10 South. 283 ; L. & N. R. R. Co. v. Pearson, 97 Ala. 218, 219 , 12 South. 176 ; Mobile Electric Co. v. Sanges 169 Ala. 341 , 53 South. 176 . In several of these cases the duty of inspecting or keeping in proper condition the machinery or plant of the master was imposed on the servant .by a rule promulgated by the master; while in L. & N. R. R. Co. v. Orr, 91 Ala. 554 , 8 South. 360 ; Birmingham F. & M. Co. v. Gross, 97 Ala. 229 , 12 South. 36 , and Pioneer M. & M. Co. v. Thomas, 133 Ala. 279 , 32 South. 15 , the duty was imposed either by express trust or by the nature of the employment itself. In most of these cases the servant’s duty to inspect or keep in proper condition was treated from the standpoint of contributory negligence; that form of defense requiring of course, averment and proof that the injury resulted proximately from the negligence.

In Birmingham F. & M. Co. v. Gross, 97 Ala. 229 , 12 South. 36 , however, the ruling seems to he based on the principle we are here applying, for it is said: “If the failure to furnish a scaffold was a defect within the meaning of the statute, all the evidence shows that at defendant’s furnace Weiss (the injured man) himself was the person who was intrusted with the duty of seeing that the ways, works, machinery, and plant were in *223 proper condition. The general charge requested by defendant on this count should have been given.” We infer, though we have not examined the original record, that this result was allowed on this proposition under the general issue merely.

We recognize the distinction, emphasized by the authorities, that, where the duty of seeing that machinery or appliances are in proper condition for use is imposed by a rule of the master on a servant Avhose primary duty is to use such machinery or appliances, his omission to discharge the first duty is negligence which relieves the master of liability only when the nature of the thing to he used, the skill of the servant, and the exigencies of his service fairly and reasonably permit of an effective inspection by him. — L. & N. R. R. Co. v. Pearson, 97 Ala. 218, 219 , 12 South. 176 ; 1 Labatt’s Master and Servant, § 417. But these limitations can have no application here, and we have been thus explicit in order to prevent any misunderstanding as to the scope of our present ruling.

Plea 7 to the first count, which is an amplification of plea 6, is for the same reasons free from the objections stated in plaintiff’s demurrer.

2. The second count, after describing the nature and modus of his injury, alleges that it “was caused by reason of the negligence of one T. P. McElderry, who was then and there in the service and employment of said defendant, and Avas then and there intrusted with the superintendence of said gin, and said injury occurred while said McElderry was in the exercise of such superintendence.” Neither the nature of the defect in the gin,. if any, nor the negligent act or omission of the superintendent, is specificially stated; and, although the plaintiff’s employment and duty were as alleged in the plea, there might still be ample room for the injurious operation in some way of the negligent superintendence of *224 McElderry with respect to the gin. It was necessary therefore, that the plea should aver that plaintiff’s injury resulted proximately from his own default, and this ground of demurrer should have been sustained to plea 8 to the second count.

Plea 9, identical with plea 7 to the first count, is, as applied to the second count, no more than a plea of the general issue, and overruling the demurrers to it was not prejudicial error.

3. The third count of the complaint, framed under subdivision 2, and identical with the second count, except that G. T. McElderry is named as the superintending servant, though it follows the language of the statute, was subject to demurrer, in that it failed to point out even in general terms any act of negligence on the part of the alleged superintendent witli respect, to his duty while so engaged. The trial court did not e>’r in sustaining the demurrer to this count.

4. Under the principles already stated, charges 5 and 6 were correct as applied to the first count of the complaint and the issues made by pleas 6 and 7.

But, as applied to the second count, such charges might be erroneous in ommitting the predicate of a default of duty by the plaintiff, resulting proximately in the injury complained of.

All of the evidence not being shown by the bill of exceptions, we cannot pronounce the charges erroneeous so far as this trial was concerned, and our observations are precautionary for the future only.

5. Under the. practice prevailing in this court, the appellee’s formal joinder in error on the record is not necessary, where the record shows a. joinder in the submission of the cause.

Reversed and remanded.

Simpson, McClellan, and Mayfield, JJ., concur.