Bear Creek Mill Co. v. Parker

HARALSON, J. The errors assigned are for the overruling of the demurrers to the several counts, and for sustaining demurrers to the 3, 1, 5, 6, 8, 9, 10, 12, 13, 11, 15, 17 and 18 pleas. Defendant’s counsel in brief waived the errors assigned to the 2d and 1th counts of the complaint, and admit that they are good, leaving the 1, 3 and 5 to be considered. 1. It. would seem, that count 1 of the complaint, from its averments ivas filed under both subdivisions 2 and 3 of the Employer’s Liability Act (Code, § 1719), which it was competent to do, if the grounds provided [300] for in the two, concurred to produce the injury; but to authorize a recovery under such a- count, the plaintiff would have to establish both allegations of negligence so- set up. — Bridges v. T. C. I. & R. R. Co., 109 Ala. 287. Subdivision 2 of said act is: “When the injury is caused by reason of the negligence of any person in the service or 'employment of the master or employer, who has any superintendence intrusted to- him, whilst in the exercise of snch superintendence;” and subdivision 3 reads: “When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, to whose orders or directions the servant or employe, at the time of the injury, was bound to- conform, and did conform, if suich injuries resulted from his having so conformed.” The count alleges that injury was.caused by.reason o-f the negligence of one Bill 'Simmons in the service or employment of the defendant’s corporation as loader or boss of the train hands, to whose order and directions the plaintiff was bound to- conform -amid did conform; and that! the injuries- sustained by plaintiff, — quoting the language of the count, — “resulted from plaintiff’s having so conformed to the orders and directions- of the said Bill Simmons-, who was then and- there in the service- of the defendant, and that said, in juries were caused by the negligence of the said Bill Simmons,” etc. The pleader went further, and stated the facts relied on to sho-w the negligence of said Simmons, — that at the time of his injuries-, when in the -execution of the order of said Simmons, plaintiff was ordered by him to malee a coupling of certain empty cars with certain loaded cars,' which were being pushed backward by the locomotive to- where the empty cars were standing; that when appellee attempted to make suich coupling, the said Simmons negligently failed to- furnish necessary light therefor, it being in the night time, and by reason of his said negligence, -plaintiff received the injuries complained of, which resulted from plaintiff’s having conformed to. the orders and directions of the said Simmons, then and there in the service of defendant. [301] It is not averred, as will appear, that Simmons, who is described in the count as “loader or boss of the train hands,” ivas intrusted with any superintendence, as such, as contradistinguished from an ordinary servant or employe to do> certain designated work. — Dantzler v. DeBardelaben, 101 Ala. 309, 315. Nor is it averred, that the order alleged to have been given by said Simmons to plaintiff, to couple the care, ivas negligently given. The negligence complained of ivas, that he failed 'to furnish sufficient light, to do the coupling in the night-time, — the injury having occured in the darkness of night. It is manifest, therefore, that the averment's do not bring the count, either under subdivisions 2 or 3 of said act, nor as concurring grounds of injury as specified from the two. 2. The objections urged to the 3d and 5th counts, the same we have had so often to encounter, — because, as alleged, they fail to aver the facts relied on to constitute negligence, are wanting in merit. Under our adjudications they are sufficient in this respect. — Authorities supra; A. G. S. R. R. Co. v. Davis, 119 Ala. 572; Armstrong v. M. St. R. Co., 123 Ala. 233; C. of Ga. R. Co. v. Foshee, 125 Ala. 200. 3. The defendant pleaded 19 pleas, “separately to each and every count thereof,” stating thaiti each plea “is interposed as a separate plea., to each count of the complaint separately.” These pleas are thus pleaded indiscriminately to the complaint and to each count thereof, when patently many of them have no reference or application to one or more of the counts. If the pleas had been to the counts at which they were specially aimed, it would have been in the interest of saving time and trouble, and less liable to' confuse and mislead. Counsel for defendant insist alone on errors in sustaining demurrers to pleas 5, 6, 9, 10 and 12. The 5th and 6th are faulty in not predicating the matters therein set up as the proximate cause of the injury to the plaintiff. The demurrer to the 9th is general, and the plea sets up nothing not provable under the general issue. The 10th is to. each of the counts and sets up the particular negligence of -the plaintiff, which is alleged to be the proximate cause of the injury to plaintiff, and not be [302] ing liable to the demurrer specially aimed at' it, tire demurrer should have been overruled. AVI urn the. 12th plea was interposed, it was applicable to the 1st count, to which, as we have held:, a demurrer should have been sustained. In its application to the complaint., generally, it may be stated, that it is a- recognized rule that “if there are two ways of discharging the service1, apparent to the employe, one dangerous and the other safe, or less dangerous, he must elect tin1 safe or less dangerous way, and cannot recover for an injury sustained when the danger is imminent and so obvious that a prudent man would not incur the risk under the same circumstances.’’ — L. & N. R. R. Co. v. Orr, 91 Ala. 518; M. & O. R. R. Co. v. George, 91 Ala. 200. Although this is the general rule, well stated in plea. 12, yet as applicable to this case, the plea is defective in not averring that the safer position therein described which the plaintiff is alleged to have abandoned for a, more dangerous one, was one in which he could have complied with the order of his superior in making the coupling; and it further fails to, aver, that going between the rails to< couple cars was so obviuosly dangerous, under the conditions prevailing, as that ami employe should have disregarded the order of his superior, and not assumed the risk. •For the errors indicated let the judgment below be reversed and the cause remanded.