Sloss-Sheffield Steel & Iron Co. v. Triplett

Damage for Injury to Servant. 1. Master and Servant; Place to Work; Duty. — The duty of a master to furnish a servant a reasonably safe place in which to work is not an unqualified duty, but is met by the exercise of reasonable care and skill to furnish a reasonably safe place. 2. Pleading; D&nvurrer; Specifying Objection. — Although a pleading would be demurrable if its defects were pointed out, this court cannot consider grounds of demurrer fatal to the complaint or pleading where such grounds do not point out the defect therein.

Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by J. C. Triplett against the Sloss-Sheffield Steel & Iron Company, for damages for injury, while engaged in its employment. The original appeal was to the Court of Appeals, and under the statute made and provided in such cases, the court of Appeals certified to this court the question as' to whether count 4 of the complaint was subject to the demurrers interposed. — See 4 Ala. App. 323, 58 South. 109. Count 4 is as follows: “Plaintiff claims of defendant |5,000 as damages, for this: That heretofore, to wit, on the 7th day of January, 1910, the defendant was engaged in the following business in Jefferson county, Alabama, viz., the operation of a coal mine, and the plaintiff was in the service of the defendant in the following capacity, to wit, as a track man; and the plaintiff avers that it was the duty of the defendant to furnish him with a reasonably safe place in which to work and perform his duties; and he avers that among other duties with which ho was charged in such service or employment he had to go or work around the track of defendant on which tram cars were run to and from its tipple; and the plaintiff avers that the defendant negligently failed to furnish him with a reasonably safe place in which to work, and that while in the discharge of his said duties, as' aforesaid, owing to the defendant’s negligent failure and breach of duty, as aforesaid, he was injured. [Here follows catalogue of injuries.] Which said wounds and injuries were the proximate consequence and caused by reason of the negligent failure of the defendant, as aforesaid.” Count 13 in the case of Merriwether v. Sayre M. & M. Go., 161 Ala. 442, was defective as pointed out in that case, and count 4 in the case at bar has the same defects which are pointed out by the demurrer. Count 4 is unlike that construed in the case of Smith v. Wd'thins, et al., 55 South. 611. It is fundamental under our system that although a count in a complaint-may be defective, yet if the defect is not pointed out. by the grounds of demurrer assigned to it, this court will not hold it subject to demurrer, the rule ■ being that the burden is on the demurrant to point out defects. The demurrer here did npt point out the defects insisted on, and hence, appellant has nothing of which he can complain. — Smith v. Watkins, 55 South. 611.