Republic Iron & Steel Co. v. Brown

PELHAM, J. This is an action brought by the appellee against the appellant to recover damages for an injury received by the plaintiff while employed as a carpenter and engaged in the performance of his duties in repairing coal cars for the defendant. The first assignment of error goes to the action of the court in overruling the demurrers to the second count of the complaint as amended. This amended count alleges that the injuries were received as a proximate consequence of the negligence of one Wilson, who was in defendant’s employ, and who had superintendence intrusted to him, in negligently failing to warn plaintiff of his impending danger “from the striking of an iron or steel rod near which plaintiff was engaged in the discharge of his duties.” It is not alleged that any duty rested on the master to warn the servant of the danger from which the injury resulted, nor is a state of facts averred from which such duty would arise; and, for aught that appears from the averments of this count of the complaint, the servant himself knew of the impending danger, and, construing the pleadings most strongly against the pleader on demurrer, it may be presumed such knowledge existed. If the plaintiff had knowledge of the danger, or by the exercise of ordinary care could have known of it, then the defendant was under no legal duty to warn the plaintiff of such danger. The defendant’s demurrers sufficiently raised the question, and should have been sustained.—Horan v. Gray & Dudley Hdw. Co, 159 Ala. 159, 48 South. 1029; T. C., I. & R. R. Co. v. Williamson, 164 Ala. 54, 51 South. 144. No duty rests on the master to warn the servant or instruct him as to the means of avoiding a danger which is known or obvious.—L. & N. R. R. Co. v. Banks, 104 Ala. 508, 16 South. 547; Holland v. T. C., I. [333] & R. R. Co., 91 Ala. 444, 8 South. 524, 12 L. R. A. 232; L. & N. R. R. Co. v. Boland, 96 Ala. 632, 11 South. 667, 8 L. R. A. 260; Richards v. S.-S. Steel & Iron Co., 146 Ala. 254, 41 South. 288. The third count of the complaint contains no averment relying on the duty of the employer to warn the servant of the danger as a basis of recovery, and the general averments of negligence therein contained are sufficient, “under the very liberal (if not lax) rules laid down by this court by which mere general averments, without stating the quo modo or the acts constituting the negligence, are held sufficient.”—Penn. Coal Co. v. Bowen, 159 Ala. 165, 169, 49 South. 305. See, also, M. & O. R. R. Co. v. George, 94 Ala. 199, 10 South. 145; Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 192, 40 South. 280; Republic Iron & Steel Co. v. Williams, 168 Ala. 612, 53 South. 76. This count was not subject to the demurrers interposed; and the action of the court in' overruling the demurrers to this count is free from error. For the error of the court in overruling the demurrers to the second count of the complaint, the case must be reversed. A further discussion of the errors assigned is unnecessary. Beversed and remanded.