Briggs v. Tennessee C. I. & R. R.

SIMPSON, J. — This action was brought by the appellant against the appellee for damages resulting from an injury received by plaintiff as employe of defendant. There is no bill of exceptions; the appeal being on rulings of the court in regard to pleadings. The first assignment of error is that the court erred in overruling the demurrer to plea 2, as an answer to count 1 of the complaint. The insistence of the appel [239] lant is that said plea fails to state that the plaintiff “voluntarily” remained in the service, etc. This cause of action arose before the adoption of the present Code. We hold that the allegation that he remained in the service, etc., necessarily means that he remained voluntarily, and was not forced to so remain. There was no error in overruling the demurrer to said plea 2, and for the same reason there was no error in overruling the demurrer to said plea as an answer to the fourth count of the complaint. Plea 3 alleges the mere conclusion of the pleader, and not any facts showing contributory negligence; Consequently the court erred in overruling the demurrer to said plea. — Osborne, Adm’r, v. Ala. Steel & Wire Co., 135 Ala. 573, 575, 33 South. 687; So. Ry. v. Guyton, 122 Ala. 235, 239, 25 South. 34; Johnson v. L. & N. R. R. Co., 104 Ala. 242, 244, 16 South. 75, 53 Am. St. Rep. 39. The demurrer to plea 4 was properly overruled. While the general principal is asserted in several of our cases, that the employe “does not assume the risk incident to the negligence of the superintendent, or of a person to whose orders he was bound to conform,” also that “an employe, by entering upon the performance of his duties, whatever may be the danger incident thereto, does not assume a risk created by the employer’s negligence,” also that “he does not assume the risk incident to the negligence of any. person in the service or employment of the master or employer who has superintendence intrusted to him, whilst in the exercise of such superintendence” ( Woodward Iron Co. v. Andrews, 114 Ala 257, 21 South. 440; Ala. Great So. R. R. Co. v. Brooks, Adm’r, 135 Ala. 407, 33 South. 181; Ala. Steel Wire Co. v. Wrenn, 136 Ala. 494, 34 South. 970), yet these expressions must be taken with the qualification that when [240] an employe, with full knowledge and appreciation of the danger, enters upon a perilous work, he assumes the risk, notwithstanding he may have been ordered so to do by one who has superintendence, and to whose orders he was bound to conform and did conform. — 1 Labatt on Master & Servant, § 438, pp. 1234-1236; Coosa Mfg. Co. v. Williams, 133 Ala 606, 611, 32 South. 232. The judgment of the court is reversed and the cause remanded. Reversed and remanded. Dowdell, O. J. and McClellan and Mayfield, JJ.,. concur.