Huyck v. McNerney

McCLELLAN, J. The first count is not drawn to declare a liability under the liability act. It is for a breach of the common-law duty in respect to furnishing instrumentalities employed in the business of the master. — 1 Laba.tt, §§ 22a, 23, and notes; Ryan v. Miller, 12 Daly (N. Y.) 77. It is sufficient in its general averments — practically conclusions — of negligence. — Laughran v. Brewer, 113 Ala. 509, 21 South. 415, among many others. While sufficient in this particular, it is deficient in other particulars. The measure of the master’s duty in this regard is not to furnish good and safe instrumentalities, but that he shall furnish instrumentalities reasonably safe and suitable, such as a prudent man would furnish if his own- life were exposed to the danger that would result from unsuitable or unsafe appliances. — 1 Labátt, §§ 22a, 23, 24, and authorities cited in notes; Meriweather v. Sayre Min. Co., 161 Ala. 411, 49 South. 916. This count declares too high a degree of duty in the premises. The tenth ground of demurrer should have been sustained. While averring the injury of the plaintiff in consequence of the falling of the ladder, the count does not, expressly or by averment of facts, connect the falling of the ladder with the alleged defective condition thereof. Non constat, though defective, it might have fallen from other cause or causes than its defective condition. It is the pleader’s duty to at least trace his injury, for proximate cause, to the event and the negligence producing the injury. Had it been averred, in a proper manner, that the falling of the ladder resulted from the defective condition thereof, the objections pointed out by the sixth and eleventh grounds of demurrer would not have been well taken. These should have been sustained. [251] In order to bring an act or omission of a master within the breach of the clnty declared on in the first count, it is obviously essential that the instrumentality alleged to have been out of order, unsafe, or unfit should be one furnished or provided by the master. Construing the count most strongly against the pleader, it was, in this particular, not certainly averred that the ladder in question was one furnished or provided by the' master. It cannot be left equivocal and yet withstand appropriate demurrer. It does appear that ladders were a part of. defendant’s business appliances, etc., and that the duty was to furnish them; but when the pleader came to deal with this particular ladder, complained of as being defective, the means of expression employed was that “a ladder in said business” fell to plaintiff’s hurt. The ladder may have been furnished or provided by another than the master, or the master may have been ignorant of its presence, and still the ladder may have been “in said business” on the occasion plaintiff was injured. The eighth ground of demurrer pointed this objection, and it should have been sustained. Other grounds assailing the first count seem to proceed on the theory that the count was a declaration under the liability act (Code 1907, §§ 3910-3913, and were, hence, inapt. Count 2 was withdrawn. The remaining counts, 3, 4, and 5, were all intended, as appellee asserts, to charge liability under subdivision 1 of the liability act. Code 1907, { 3910. , The chief question raised by the demurrers to- these counts is whether a ladder connected with or used in .the business of a contractor engaged at the time in constructing- a. building is a part of the ways, works, machinery, or plant of such contractor’s business. The plaintiff seems to rest the soundness of h-is pleading, in [252] this particular, upon the proposition, alone, that the ladder Was a part of the “plant,” in effect granting that it was not a part of the ways, works, or machinery. The inquiry, then, narrows to this: Whether the ladder was a part of the “plant” of the defendant. If not, the demurrer should have been sustained; otherwise, was well overruled. The demurrant relies on Gross’ Case, 97 Ala. 220, 12 South. 36; Brooks’ Case, 84 Ala. 138, 4 South. 289, Clements’ Case, 127 Ala. 166, 28 South. 643, Moore’s Case, 128 Ala. 435, 29 South. 659, and Burton’s Case, 97 Ala. 240, 12 South. 88; all save the last being adjudications mentioned and expressly doubted in soundness in the more recent announcement made in S. S. S. & I. Co. v. Mobley, 139 Ala. 425, 36 South. 181. It is evident that our previous decisions, discussed in the Mobley Case, if followed, would have led to a ruling on the demurrer to the sixth count opposed to that pronounced proper therein. In short, both the Mobley Case, on the one hand, and the Gross Case and the others mentioned, on the other hand, cannot stand. They are opposed. We therefore conclude, on this question, in accord with the latter, and as appears to us, with the sounder, doctrine of the Mobley Case. A ladder, used by a master in pursuit of his business as a contractor engaged in the construction of a building, is a part of such contractor’s plant. — Sec. 2 Labatt, § 668e and note; Id. § 671d, and note. The third count avers .that the defect in the ladder consisted in its being “round at the ends,” and in consequence, that said ladder was liable to slip and fall, and that it was not braced to prevent it from slipping and falling. The first ground of the demurrer challenges the count as showing a defect. The degree of care and diligence due from the master, in this connection, is no [253] greater than at common law. — 2 Labatt, § 672. Whether the averment is too uncertain in ascribing the defect to the ladder alone, or to the manner of its use, or to both, might or might not be a question; but the demurrer does not raise it, and it is not considered. Common knowledge suggests that a ladder with round ends may or may not be unsafe or unsuitable, and its employment in the business of a building contractor a breach of his duty. It might be unsafe and unsuitable when rested, at the bottom, on one character or condition of support, and safe and suitable, within duty, when rested on another; or the former, rather than the latter, when arranged with greater angle to the level of its base; or the latter, when set at a. perfect right angle to the level of a base parallel with the ground — any one of the alternatives being, as of course, immediately affected by the fact whether the rest, bottom, of the ladder was a smooth, sleek, rough, or sloping surface. Other conditions of suitableness and safety might be instanced. Those stated will suffice to indicate our view that the degree of care and diligence required may be entirely met, even though the ladder’s ends are rounding, and though it was not braced to forestall its liability, under some circumstances, to slip'and fall. In short, in the absence of averment showing that the ladder, with rounding ends, was so placed, in respect of angle and rest and the character thereof, as indicate a lack of exercise of the prudence and care and diligence required of the master, it cannot be held that the condition described in count 3 was per se, as matter of law, a defect in the plant of the master. Not being per se a. defect, the pleader’s obligation was to show by averment that in the employment of such an instrumentality, as count 3 describes, the degree of care and diligence required was not met. That which, as described, may [254] not be a defect, cannot be pronounced a defect simply because the pleader denominates it a defect. The condition described refutes the conclusion the pleader draws. Furthermore, no fact is averred wherefrom it must be concluded that .a duty to brace the ladder arose on this occasion. If that duty was alone expected and intended to be predicated upon the rounding ends of the ladder, that must, as we have seen, depend upon circumstances, of which there is not proper averment. These considerations lead to the conclusion that the first ground of demurrer should have been sustained, not only to count 3, but also to count 5. Ground 10 of the demurrer was, in consequence, likewise well taken as to counts 3 and 5. Other points of objection, taken by the demurrers, need not necessarily be now considered, since a reformation of the complaint must be had before another trial. Count 4, -wherein the defect was not undertaken to be described, seems to be, in this particular, within the ruling of Jackson Lumb&r Co. v. Cunningham, 141 Ala. 206, 37 South. 445. The court has so often written in reference to the essentials in pleas of assumption of risk and contributory negligence, there is no necessity to treat the pleas in this instance. Previous decisions will point the way to good pleading of these defenses, from defendant’s viewpoint. For the errors indicated, the judgment is reversed, and the cause remanded. Reversed and remanded. Dowdell, O. J., and Simpson and Mayfield, JJ., concur. ■ ' , ¡ i