Ex Parte Taunton

PER CURIAM. The judgment in favor of L. A. Taunton against Tallassee Ealls Manufacturing Company was reversed by the Court of Appeals, and this petition is for certiorari to review the decision of that court. [1] The reversal was rested upon the action of the trial court in overruling demurrer to count B, which count was held by the Court of Appeals to be subject to the sixth ground of demurrer interposed thereto. Count B and the sixth assignment of demurrer will appear in the report of the case. The Court of Appeals construes this count as b(eing grounded upon subdivision 2 of section 3910, known as the employers’ liability statute. Upon a careful consideration of this count, however, we find ourselves unable to agree with this construction, but are persuaded that count B states a cause of action under subdivision 1 of the employers’ liability statute, for a “defect in * * * the ways, works, machinery, or plant connected with, or used in the business of, the master or employer.” We think the averments as to the duties of the master mechanic, and the subsequent allegation as to his negligence in regard to the walkway, are to be construed in connection with the concluding paragraph of section 3910 of the Code of 1907, as found 9n page 602 of the Code, and not as indicating a reference to subdivision 2, which relates to the negligence of a superintendent. The following language is the concluding paragraph of section 3910: “Nor is the master or employer liable under subdivision 1, unless the defect therein mentioned arose from,, or had not been discovered or remedied owing to the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with a duty of seeing that the ways, works, machinery, or plat were in proper condition.” It is to be noted that the language of this count in reference to the master mechanic very closely follows the concluding sentence of the foregoing statute. What was.said by the court in the case of Northern Alabama Railway Co. v. Shea, 142 Ala. 119, 37 South. 796, treating count 6, suffices to demonstrate, we think, the sufficiency of count B as against the assignment of demurrer here in question. [2] We have therefore reached the conclusion that the. Court Of Appeals fell into error in holding that the sixth assignment of demurrer should have been sustained to count B, and in reversing the case therefor. If, as argued by appellee’s counsel, there has been any such conduct on the part of counsel for plaintiff as to estop them from the foregoing insistence as to this count, nothing of such a character appears in the record, and therefore is not presented for consideration. The writ of certiorari will be awarded, and the judgment of the Court of Appeals reversed, and the cause remanded. Writ granted. Reversed and remanded. All the Justices concur.