Shelby Iron Co. v. Cole

GARDNER, J. Appellee was injured while working for an independent contractor who was engaged in repairing machinery for appellant upon the premises of the latter, and recovered a judgment for the damages sustained, from which defendant prosecutes this appeal. Plaintiff states his cause of action in two counts; the first resting for recovery upon the simple initial negligence of one Seale, the servant or agent of defendant, acting within the line and scope of his employment, in the operation of the elevator of defendant. Count 1 discloses that the plaintiff was rightfully upon the premises as an invitee of defendant, and the defendant owed him a duty of reasonable care to avoid injuring him. This count sufficiently discloses the relationship out of which this duty arose, and a negligent breach thereof. The more specific matters insisted upon by counsel would more properly arise upon the question of contributory negligence. Doullut & Wil *659 liams v. Hoffman, 204 Ala. 37, 86 South. 73; M. & O. R. R. Co. v. George, 94 Ala. 199, 10 South. 145. There was no error in overruling the demurrer to this count. It is next insisted there was error in sustaining demurrers to pleas 3 and A, which counsel for appellant state are pleas of assumption of risk. ITeas of this character arise out of contracts between the parties -(Kansas City, M. & B. R. Co. v. Mippo, 138 Ala. 487, 35 South. 457), and, it would seem, are here inapt (Melton v. B. R., L. & P. Co., 153 Ala. 98, 45 South. 151, 16 L. R. A. [N. S.] 467). Moreover, for aught that appears in these pleas, the danger to which plaintiff was exposed was the result of negligence of defendant, which is never assumed. Bierley v. Shelby Iron Co., ante, p. 25, 93 South. 829. Counsel for appellant argue there was error in sustaining demurrer to pleas 4, 5, 6, 7. and 8, which are pleas of contributory negligence, but demurrer was not sustained to plea ,7. These pleas purport to be pleas of contributory negligence. Plea 7, to which demurrer was not sustained, sets up the same defense of contributory negligence as these other pleas, but carried with it none of the additional burdens with which the other ideas were incumbered. In addition to this, these defenses were also set forth in pleas B, C, and D, to which demurrer was oyerruled. The averments of these pleas disclose by comparison that defendant received the full benefit of this defense, as shown to be set up in the pleas to which demurrer was sustained, and therefore in no event could the defendant bo said to have suffered any injury. It therefore becomes unnecessary to enter into a consideration of the sufficiency of these pleas as against the demurrer interposed thereto. Nor can reversible error be rested upon the refusal of the affirmative charge, as the bill of exceptions does not show that it contains all, or substantially all, the evidence upon which the cause was tried. Charge 19, requested by defendant, was properly refused, as it pretermitted a consideration by the jury of that portion of the evidence tending to show that the operator of the elevator was warned of plaintiff’s lieril in time to have prevented the injury. The questions to witnesses—objections to which were interposed, and the rulings upon which constitute assignments of error 36 and 42, inclusive—call for a statement of. collective fact, and the court committed no error in overruling the objections thereto. There are numerous assignments of error which are merely stated in brief, but not argued, and are therefore considered waived. We have here considered those assignments of error which have been treated by counsel for appellant in their brief, and, finding no reversible error, the judgment appealed from will be affirmed. Affirmed. ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.