King v. Woodward Iron Co.

MAYFIELD, J. This action is under the Employer’s Liability Act (Code 1907, § 3910) to recover damages for the wrongful death of a servant of the defendant. The complaint contained 12 counts. Each count alleged that the servant was employed to mine iron ore, and was killed upon a tram track used for hauling the ore from the mine, by being stricken by one of the tram cars used upon this track, and that when he was killed he was coming out of the mine, and was walking upon this tram track. The defendant pleaded the general issue and assumption of risk and contributory negligence on the part of plaintiffs’ intestate. To these special pleas, plaintiffs filed a number of replications. Of the overruling of demurrers to some of these special pleas, and of the sustaining of demurrers to some of the special replications, plaintiffs complain, and such rulings are here assigned and insisted upon as errors to reverse the judgment below, which was for the defendant. The reporter will set out these pleas and replications. Pleas 4 and 10 were good pleas of contributory negligence, and were not subject to any one of the grounds of demurrer interposed to them. These pleas allege that intestate’s death was the proximate result of his own negligence in violating an express order, instruction, or direction of the defendant not to walk up and down a tram track in the mine; and that while so walk — 497 — iug up and down said track, in violation of defendant’s orders, lie was struck by a car upon said track and killed. Tlie pleas were not, as plaintiffs argue, pleas which attempted to set up contributory negligence, in that the servant selected a dangerous way or mode of performing the service, Avhen a safe or less dangerous Avay or mode Avas open for selection. The contributory negligence relied upon was that of willfully -violating the order or direction of tibe master, and injury in consequence of such Adolation; and it Avas, of course, sufficient. Mr. Labatt states the huv upon the subject as folIoavs: “According to nearly all the decisions, contributory negligence should be inferred, as a matter of law, Avhenever the injury resulted from the servant’s noncompliance Avitli a .specific order given by the master or his representative, even though such an inference might not be a necessary one if the order Avere not a factor in the case. This doctrine is applicable Avliether the order related to the position which the servant aauis to take at a given time or place, or to the manner in which an act incident to his duties Avas to be done, or' to the work Avkicli he Avas or Avas not to undertake, or to the purpose for which an appliance Avas to be used, or to the precautions to be adopted AAdiile the work Avas going on." — Master and Seiwant, vol. 1, § 368. “A servant who has reported a dangerous spot in the roof of a mine Avliile at Avork, and, contrary to orders, continued Avorking Avithout. Avaiting for the.props, Avhich soon came, cannot recover for injuries caused by the fall of slate.—Knight v. Cooper (1892) 36 W. Va. 232, 14 S. E. 999. A servant in a mine, Avho disobeys a prohibition as to folloAving the hoisting bucket up an incline, and is injured by the breaking of the rope, cannot recover.—Patnode v. Harter (1889) 20 Nev. 303, 21 — 498 — Pac. 679. A servant who fails to follow his instructions to stand at one side, instead of in front, of an emery wheel, and is injured in consequence of such failure when the wheel burst, cannot recover—Smith v. Foster (1900) 93 Ill. App. 138.” Id., note, p. 142. Plea 8 was a good plea, and was not subject to the demurrer. Unlike pleas 4 and 10, it did set up contributory negligence, in that plaintiffs’ intestate voluntarily selected a dangerous way out of the mine, when a safe one was known and open to him. While the plea does say that intestate assumed the risk, yet it is a good plea of contributory negligence, and the court will not be put in error for overruling the demurrer thereto. The plea in effect alleges that there were two ways of ingress and egress to this mine, one a tramway for transporting the ore by cars, the other a manway for the ingress and egress of the men employed in the mine; that the one was dangerous, the other safe, and that intestate, aware of these facts, negligently selected the dangerous way as an exit from the mine; and that, as a proximate result of this negligent act, he was killed by being struck by a car. Knowing of this danger, as the plea alleges, he did voluntarily assume whatever risk there was, and was, as the plea alleges, injured in consequence thereof. If the facts alleged in this plea were true, the defendant was not, and ought not to be, liable for the death of intestate. The plea in effect alleged that intestate’s death was not the result solely of the negligence alleged in the complaint, but also of that alleged in the plea. If such was the fact, it was a good defense. The plea was not bad, in that it attempted to allege that intestate assumed the risk as to the negligence of some other servant or employee, as for which negligence the statute makes the master liable, as were the — 499 — pleas condemned in the case of L. & N. R. R. Co. v. Haudley, 174 Ala. 593, 56 South. 539, and Woodward Co. v. Andrews, 114 Ala. 243, 21 South. 440. This plea set up the negligence of the intestate only, and injury in consequence "thereof. It was the danger incident to his own negligence which the plea alleges he assumed, and, of course, prima facie every one assumes the danger arising from his own negligence. The plea was a good defense to the action, and to each count of the complaint to which it ivas sustained, no matter whether it be called a plea of contributory negligence or one of assumption of risk. The plea clearly and certainly alleges that the intestate voluntarily selected this tramway, which was dangerous, when he knew there ivas a manway which ivas safe. This was negligence, and whatever risk attended it (nothing further appearing) he, of course, voluntarily assumed. It is too clear for argument that if he had gone out by the manway, instead of by the tramway, he would not have been killed. Knowing that one was safe and the other dangerous, it was certainly negligence to select the dangerous way. The rule as to ideas of assumption of risk and con(ributory negligence as an answer to counts under the Employer’s Liability Act was well stated by McClellan, C. J., in Andrews Case, 114 Ala. 257, 21 South. 443, as follows: “One theory of defense under these counts is that the plaintiff must be held to have assumed the risks incident to Neal’s negligence by remaining on the hand car when Neal caused it to be run into this dangerous place. This idea is unsound. To sustain it would be to emasculate the Employer’s Liability Act in respect of its second, third, and fifth clauses, and to rehabilitate the common-law doctrine of fellow servants as applicable to the cases provided for in those clauses, when — 500 — the clear purpose of the act is to destroy the defense of assumption of risk by the injured employee in the several cases stated in the counts referred to. An employee in such cases may be guilty of such contributory negligence as will bar his recovery; but he does not assume the risks incident to the negligence of a superintendent, or of a third person to whose orders he was bound to conform, and did conform, or of a person in charge and control of a locomotive engine, car, etc.—Reno, Employer’s Liability Act, § 190.” While the effect of the statute was to relieve the injured servant from assumption of risk as to certain 'negligence of his fellow servants for which the statute makes the master liable, it did not render the master liable to the injured servant for the latter’s negligence, nor did it require the master to assume the risk of injury to a servant on account of the latter’s own negligence; it only made the master liable to the injured servant for the negligence of other servants in those cases in -which such negligent acts were covered by the statute. It is often a question of little importance whether a given plea be called one of assumption of risk or a plea of contributory negligence. The more important inquiry is: Are the facts stated in the plea a defense to the cause or causes of.action stated in the complaint or declaration? If the facts stated constituted a defense, the conclusion as to whether the plea be called one of assumption of risk or one of contributory negligence is not of much moment. Likewise, if the facts stated are not a defense to the action, it is not of much consequence whether the plea be said to be insufficient as of assumption of risk or of contributory negligence. It is true that this and other courts have made and observed a distinction between these defenses, and there — 501 — is a difference; but not such a difference as to make this plea bad. This point as to this plea is that the facts stated constituted a good defense to each count of the complaint, as to which it was sustained, and it is immaterial what the plea is named or called. See Foley v. Pioneer Co., 144 Ala. 178, 10 South. 273; Gainer’s Case, 152 Ala. 184-188, 44 South. 652; 13 Ency. Pl. & Pr. p. 914. Assumption of risk, in actions by a servant against the master, usually implies, and refers to, those risks arising from the contract of employment, either expressed or implied, but not always. It sometimes in-dudes risks voluntarily assumed by the servant in attempting to do something that is unnecessary, and that he is under no duty to perform; and probably the doing of that, particular act may also be negligence on his part, and if a risk of injury attends such negligent act he is said, in such case, to assume the risk of Ms own negligence. ‘‘The term ‘assumed risk’ includes generally any form of assumed risks; that is to say, risks originally incident to the work, as well as risks not so incident, but arising from the circumstance that the danger ivas a known one.—International & G. N. R. Co. v. Moynahan, 33 Tex. Civ. App. 302, 76 S. W. 803, 804. The assumption of a risk appears to involve the fact of comprehension that a peril is to be encountered and a Avillingness to encounter it; that is to say, a positive exercise of a volition in the form of an assent to the risk.—Adoff v. Columbia Pretzel & Baking Co., 100 Mo. App. 199, 73 S. W. 321, 324.” 1 Words and Phrases, p. 589. This court has spoken as MIoaa'S upon the subject: ‘‘In the case of Mary Lee C. & R. Co. v. Chambliss, 97 Ala. 171 [11 South. 897], the general rule was recognized that an employee, Avho voluntarily undertakes to perform a duty not Avithin the scope of his employment, — 502 — assumes the risk of such undertaking. That the plaintiff’s intestate voluntarily left his place as brakeman and undertook to perform the duties of a fireman as a favor to the regular employed fireman, without orders or instructions from the conductor, or any person having authority over him, and while thus engaged as a fireman was killed, we think clearly established.”—A. G. S. R. R. Co. v. Hall, 105 Ala. 606, 607, 17 South. 176, 179. Plea 9 was unquestionably a good plea, as it set up a voluntary violation of a known and reasonable rule of the master, provided for the safety of the servant, and-that the injury was the proximate result of his so violating such rule. The special replication interposed to the pleas were not sufficient answers thereto. The plaintiffs could not invoke a custom to excuse intestate for negligence in the doing of an obviously dangerous act which the pleas alleged he did, and did in violation of express orders and directions from the master, and did so in violation of his own express agreement. None of the special replications were sufficient to show that the master knew of this dangerous custom, or that he had assumed the risk of the servants’ doing what the intestate was doing when injured. None of them denied the facts stated in the pleas, nor did they sufficiently confess and avoid the pleas; hence the court did not err in sustaining the demurrers thereto. Finding no errors in the record, the judgment is affirmed. Affirmed. Simpson, Sayre, and Somerville, JJ., concur. Dow-dell, C. J., and Anderson and McClellan, JJ., dissent, being of the opinion that pleas 4 and 8 were bad, and subject to the demurrer.