Green v. Bessemer Coal, I. & Land Co.

SAYRE, J. Count 4 avers that plaintiff’s intestate at the time of his injury and death was in the service or employment of the defendant in or about the operation of the defendant’s mine. This is not the equivalent of. an allegation that plaintiff’s intestate was at the time engaged in or about the business of.the defendant; that is to say, was at the time engaged in the performance of some duty imposed upon him by his employment. Non constat he was at the immediate time upon some errand or business of his own, although in a general way in the employment of the defendant. There was no error in sustaining the demurrer to this count. Count 9 attempts to state negligence on the part of the defendant. in complying with section 1028 of the Code of 1907. It appears from the count that plaintiff’s intestate was being lowered into the mine by means of an engine and drum attached, as we must suppose, by wire or cable, or in some such way, to the car upon which he was. The car was a coal car, but was used also for lowering and hoisting persons into and out of the mine. The car upon which intestate was became uncoupled from the car next above it and ran down the incline, thus causing, his death. The negligence attributed to defendant consisted in the use of the car without approved safety catches attached to it. Section 1028 provides that approved safety catches shall be attached to the cage used for the purpose of hoisting and lowering persons into and out of mines. Perhaps we cannot judicially known that safety catches are devices which cannot be employed in connection with cars used for the purpose of hoist — 615 — ing coals as well as persons out of mines, or even that such devices would be unavaliable in the case of cages used to carry coal and men up and down a perpendicular shaft if any be so used. However that may be, there is no legislative requirement that cars operated upon a slope or inclined track, though used for the hoisting and lowering of persons, should be equipped with safety catches. We are not disposed toward a narrow construction of the statute, but we cannot ignore the fact that the duty imposed by it is enforced by penal provisions (Code 1907, § 7418), and we are not authorized to extend its application to a case not falling fairly within its letter and spirit. — E. T. V. & G. R. R. Co. v. Bayliss, 77 Ala. 429, 54 Am. Rep. 69; Lewis v. Southern Ry. Co., 148 Ala. 133, 38 South. 1023. There is no averment of negligence apart from the mere failure to comply with the supposed statutory duty. The reliance is upon the proposition . that a failure to attach safety catches to cars operated upon an inclined track for the hoisting of men and coals constitutes negligence per se. We do not subscribe to this interpretation of the statute, and accordingly rule that the demurrer was properly sustained. Nor did the amendment better the count. There is a patent effort to adapt the facts of plaintiff’s case to a statute which had no such case in contemplation. The statute was designed to require safety catches on cages operated in shafts, and to require adequate brakes upon “every brake, drum, or machine for lowering and hoisting persons into and out of the mines.” The further language of the statute shows that a cage is not the machine to which a brake shall be attached. It proceeds: “And also props and indicators which shall show to the persons who works the machine the position of the cage or load in the shaft or on the roadway.” We believe we may affirm that the statute does — 616 — not "require safety catches upon “cages” which are attached below other “cages” and run upon inclines or roadways, nor does it require brakes upon cages in any case. As we have seen, there is a requirement of brakes, but they are required in another connection. The conjunction in the count of two ideas, each ineffectual standing alone, falls' short of the statement of a cause of action. The demurrer to count 10 as originally framed seems to have been sustained in response to those grounds of demurrer which took the point that it did not appear* that plaintiff’s intestate had a duty to perform upon the car. After demurrer sustained, plaintiff amended her complaint by averring that it was the duty of her intestate to be upon the car, whereupon the demurrer was overruled. But the original count averred that intestate was going down the slope upon the car “while in the performance of his duties. This general form of allegation was sufficient (Sloss-Sheffield Co. v. Chamblee, 159 Ala. 185, 48 South. 664), and its legal effect was not changed by the' amendment. The error was therefore error without injury. Count 11 alleges no more in respect to plaintiff’s intestate being upon the car than that he had a right to be there. But it is obvious that his having to be there does not establish the other fact necessary to the maintenance of plaintiff’s case, viz., that he was there in the discharge of some duty imposed upon him by his contract of employment.- In default of an averment of this last fact, the count in question was defective, and the demurrer to it was properly sustained. The manner of pleading adopted in this cáse, though not uncommon, did not conduce to an intelligible presentation of issues to the jury. Of the nine counts which withstood demurrer in the court below each dif — 617 — fered materially from the others in its presentation of the facts upon which the plaintiff relied for recovery. Eight of them were framed under the employer’s liability act (Code 1907, § 3910). One went upon the common law. Twelve pleas were addressed to each count severally and separately, and, we may add, indifferently. An examination of these pleas shows that a number of them are inapt as answers to several counts of the complaint. Demurrer to each plea was framed without any effort to discriminate between the merits of the plea as an answer to some counts and its merits as an answer to others. The judgment also was general and to the effect that demurrer to each plea be overruled or sustained. It is possible that such a judgment as to each plea may be affected with error or not as the plea is referred to one count or another. Briefs of counsel deal with the assignments of error based upon the action of the trial court in overruling demurrers to pleas in the same way. Without undertaking to thread our way repeatedly through the pleading in order to learn the exact application of grounds of demurrer to each plea as an answer to each count, we will consider such questions as counsel have argued, assuming, as counsel appear to hiave assumed, that they need to be considered only when presenting in facie an appearance of aptness. Plea 4 was not a sufficient answer to those counts of the complaint which aver that plaintiff’s intestate received his injury by reason of a specific defect in the ways, works, machinery, or plant of the defendant while riding upon the car as it was his duty to do. For aught that appears, the notice that it was dangerous to ride upon the cars was no more than notice of such danger as inhered in the operation of cars under conditions necessarily obtaining. Such notice, without more, did not put plaintiff’s intestate in the attitude of assuming — 618 — the risk arising out of a specific defect not known to him, and not so obvious that he must be presumed to have known it. The demurrer to this plea should have been sustained. The same considerations dispose of the seventh and ninth assignments of error which relate to the action of the court in overruling demurrers to pleas 8 and 11. The argument for these pleas overlooks the allegations of the counts that it was the duty of the plaintiff’s intestate to be upon the car. This alleged duty deprived intestate of a choice to go to his work in a different way. Plea 10, however, was not open to any objection assigned to it by the demurrer. Replication 2, as it appears in the record, is unintelligible, due, no doubt, to errors in transcribing. Replications 1, 8, and 4 were no sufficient replies to plea 10, which ■ alleged that defendant’s foreman warned plaintiff’s intestate that it was dangerous to ride on said tram car and instructed said intestate not to ride on- said car, and this for a reason assigned by the demurrer. It must be conceded that in a number of predicaments general rules of the employer become indecisive factors in determining the conduct of employes, for the reason that the master by habitual or customary acquiescence in their violation, or by imposing duties which cannot be performed except by a violation of them, may estop himself to assert their continued binding force. — Labatt, Mas. & Ser. § 366. But in this case plea 10 avers that intestate was instructed not to ride on said car, and, of course, any custom or general rule to the contrary could not estop the employer to impose his will upon the employe in the particular instance by an instruction given for the purpose of controlling the conduct of the employe at the time. Against such an instruction a general rule or custom would not operate as an estoppel. — 619 — In conclusion we remark that the transcript of the record fails of compliance with rule 26 (Code 1907, p. 1512) in two respects: It is not prefaced by an index of its .contents specifying the pages at which the various matters are to be found. There are no marginal references to the several matters to be found throughout the transcript. This rule contributes much to the convenience of the consideration of causes in this court, and should be observed. For the error indicated, the judgment of the court below is reversed, and the cause is remanded. Dowdell, O. J., and Anderson and McClellan, JJ., concur.