Harbison-Walker Refractories Co. v. Ross

PELI-IAM, J. The appellee sued the appellant, claiming $5,000 damages for personal injuries alleged to have been received by him while in the- employ of the defendant, on account of the falling upon him of a pile or stack of brick, and recovered a judgment for the sum of $100, from which this appeal is prosecuted. The first assignment of error challenges the correctness of the ruling of the trial court in overruling the appellant’s demurrers to the third count of the complaint. This count is framed under subdivision 2 of the Employer’s Liability Act (Code, § 3910, subd. 2), attributing the injury to the negligence of a person having superintendence intrusted to him, whilst in the exercise of such superintendence. While the allegation of negligence in this count is general, it is sufficient under the rulings of the Supreme Court. The count is evidently drawn under the authority of the case of Creola Lumber Co. v. Mills, 149 Ala. 474, 42 South. 1019, and the appellee states in brief that the count was copied from this case. Its allegations are sufficient, as tested by the holdings of that case. The appellant’s second and third assignments of error are directed at the court’s rulings in sustaining plaintiff’s demurrer to plea No. 2 as an answer to counts 3 and 4 of the complaint. Plea No. 2 is one of assumption of risk, and counts 3 and 4 are based on the second and third subdivisions, respectively, of the Employer’s Liability Act. The demurrers were properly sustained, as an employee does not assume the risk of injury arising from such causes, and the assumption of risk cannot be pleaded to an action based [636] on subdivisions 2 and 3 of section 3910 of the Code, known as tbe Employer’s Liability Act. — L. & N. R. R. Co. v. Handley, 174 Ala. 593, 56 South. 539; L. & N. R. R. Co. v. Wynn, 166 Ala. 413, 51 South. 976; A. G. S. R. R. Co. v. Brooks, 135 Ala. 401, 33 South. 181; Ala. Steel & Wire Co. v. Wrenn, 136 Ala. 475, 34 South. 970; Birmingham Min. & Const. Co. v. Skelton, 149 Ala. 465, 43 South. 110; Woodward Iron Co. v. Andrettis, 114 Ala. 243, 257, 21 South. 440. What have we said in reference to plea No. 2 as not being a good answer to counts 3 and 4 of the complaint disposes of the fourth assignment of error, as the charge (No. 15) refused to the defendant and made the basis of this assignment required a finding for the defendant predicated entirely on facts showing an assumption of risk by the plaintiff. The fifth and ninth assignments of error are discussed together by appellant. There is some evidence shown by the testimony set out in the bill of exceptions affording a basis for a finding by the jury, as referred to the alleged negligence of Oscar Nunn (which is made the gravamen of the fourth count of the complaint), as a person to whose orders plaintiff was bound to conform. The general charge was properly refused to the defendant with respect to this count, and, as charge No. 16 is an instruction to find for the defendant without regard to the cause of action presented under the allegations of this count (which there'was evidence to support), there can be no error predicated upon a refusal to give the charge. The seventh and eighth assignments go to the refusal of the court to give the general charge for the defendant on the third and first counts of the complaint, and assignment No. 6 is based on the court’s refusal to give [637] the general charge in behalf of the defendant on the whole complaint. On the evidence set out in the bill of exceptions the plaintiff was entitled to have his case presented to the jury on the causes of action set out in the first and third counts of the complaint. The first count alleged the negligence of the defendant to be due to the failure of the defendant to furnish the plaintiff a reasonably safe place in which to work, and the plaintiff’s evidence was sufficient to require a submission of the question of negligence in this particular to the jury. The third count is based on the second subdivision of the employer’s liability act. A negligent order may result from the failure to refrain from giving an order under conditions that will probably result in injury because of some defective instrumentality, as well as the giving of a negligent order. — Labatt on Master & Servant, § 14. See, also, Sloss-Sheffield Steel & Iron Co. v. Green, 159 Ala. 178, 49 South. 301; Sloss-Sheffield Steel & Iron Co. v. Holloway, 144 Ala. 280, 40 South. 211. There being no error in refusing the general charge on either the first or the third count, it follows that tiie general charge on the whole complaint was properly refused. Charge No. 21, made the basis of the tenth assignment of error, is an instruction to find for the defendant on the theory of the assumption of risk, and this is not a good defense to counts 3 and 4 of the plaintiff’s complaint. Demurrers had been properly sustained to the plea setting np assumption of risk as an answer to counts 3 and 4, and we discussed this question in disposing of assignments 2 and 3. Charge No. 22, upon which appellant predicates the eleventh assignment of error, requires the plaintiff to show that Oscar Nunn had superintendence intrusted [638] to him.' The count of the complaint counting on the negligence of this person (count 4) is not under subdivision 2 of the Employer’s Liability Act, providing for the'liability of the master due to the negligence of one having superintendence intrusted to him, but is under subdivision 3,- providing a liability when the injury is occasioned by reason of the negligence of a person in the service of the employer to whose orders or directions the servant was bound to conform. It was only necessary to a recovery on any one of the several counts drafted under the different subdivisions of the act that the plaintiff prove the essential allegations of negligence in respect to a particular count, where the elements of the different subdivisions were not commingled and declared on in the same count. The two subdivisions are not to be taken as covering the same field, but to authorize a distinct cause of action based on the provisions of each separate subdivision. — Bridges v. Tennessee C. I. & R. R. Co., 109 Ala. 287, 19 South. 495; L. & N. R. Co. v. Fitzgerald, 161 Ala. 397, 49 South. 860. We have considered and discussed all of the errors insisted upon by appellant, and find no error authorizing a reversal. An order affirming the judgment appealed from will be entered. Affirmed.