Clinton Mining Co. v. Bradford

McCLELLAN, J. This action, instituted by the appellee against appellant, was finally tried on issues tendered by the first count of the complaint. It was drawn to state a cause of action under the first subdivision of the Employer’s Liability Act (Code, § 3910). The means of injury was the falling of rock or slate upon him from the roof of defendant’s ore mine. In addition to the general issue, the defendant interposed plea 2, which the report of the appeal will contain. This plea attributed the injury complained of to the alleged fact that plaintiff negligently exposed himself to the injury he received by going under loose rock or slate in the roof of a certain heading in the mine, of the dangers of which action he was aware or should have known had he observed ordinary care; The plaintiff’s demurrer to the plea was overruled. (1) It is now insisted for appellant that there is no evidence in the record tending to sustain the material averment that at the time plaintiff was injured the relation of master and servant existed; but, to the contrary, it is asserted that the evidence undisputedly showed that the plaintiff was a “contractor.” — Warrior-Pratt Coal Co. v. Shereda, 183 Ala. 118, 62 South. 721; Hubbard v. Coffin & Leake, 191 Ala. 494, 67 South. 697. No suggestion of this nature appears to have — 581 — been intimated or made during the trial below. On the other hand, the court gave to the jury at the instance of defendant (appellant) its charge numbered 8, wherein rules of law applicable to “employer” and “employee” (we quote these terms from the thus given charge) were defined in respect of the measure of care due an “employee,” by the “employer,” and the nature of the risks assumed by the “employee.” Having thus voluntarily induced the court to advise the jury as its charge 8 did, the defendant (appellant) cannot be here heard to urge error as upon the refusal of the court to give effect to an entirely inconsistent theory in the premises. — L. & N. R. R. Co. v. Holland, 173 Ala. 675, 697, 55 South. 1001, and cases therein cited. At the request of the plaintiff the court gave the following instruction to the jury: “I charge you that you cannot find plaintiff guilty of contributory negligence by reason of his remaining in the employment of defendant after knowledge of a defective roof, if you believe from the evidence that the roof was defective, unless it was his duty to remedy such defect.” It is manifest that the effect of giving this instruction to the jury was to eliminate the substance of plea 2 from consideration by the jury, and to deny to defendant the benefit of the matter of the plea in bar of the recovery sought under the first count of the complaint, the plea 2 having been held not subject to the demurrer interposed. (2) In the presently important particular Code, § 3910, reads: “Provided, that in no event shall it be contributory negligence or an assumption of risk on the part of the servant to remain in the employment of the master or employer after knowledge of the defect or negligence causing the injury, unless he be a servant whose duty it is to remedy the defect, or Avho commit — 582 — ted the negligent act causing the injury complained of.” We have recently had occasion to consider this feature of the statute (section 3910) in the concrete cases of Burnwell Coal Co. v. Russ Setzer, 191 Ala. 398, 67 South. 604, and Standard Cement Co. v. Thompson, 191 Ala. 444, 67 South. 608. In the former case it was ruled, in substance, that the theory the trial court put into effect by its rulings, viz., that the 1907 addition to the statute effected to inhibit the defenses of assumption of risk and of contributory negligence in all circumstances except the two mentioned in the last sentence in the quoted feature of the statute, was erroneous, because of a misinterpretation of the effect of the 1907 addition to the statute. In the latter case it was ruled, in substance, that the 1907 addition to statue (section 3910), before quoted herein, did not operate to repeal or to qualify the preceding feature of the statute, viz., that forbidding a recovery where the employee knew of the defect or negligence, and failed within a reasonable time to give information thereof to the master or the superior, unless the master or superior knew of such defect or negligence. It is not to be supposed that the last-indicated feature-of the statute was left in it to no' purpose, which would be the result if the 1907 addition to the statute was interpreted as destroying the defenses of assumption of risk and of contributory negligence, except in the two cases mentioned in the last sentence of the addition quoted ante. So, without assuming to interpret the present statute (section 3910) beyond the necessities of the concrete case presented, and drawing down to the present for complete statement of and giving effect to, the statute as it exists, in virtue of the mentioned addition in the Code of 1907, we can now state its whole effect in re — 583 — spect of causes of action under the first subdivision of the Employers’ Liability Act, which is that the defenses of assumption of risk and of contributory negligence are available in only three circumstances, viz.: (a) Where, as in the Thompson Case, supra,, the servant knows of the defect or negligence and fails to give information thereof within a reasonable time to the master or to a superior in the service, unless the master or such superior knows of the defect or negligence, (b) where the injured servant, whose duty it is to remedy the defect alleged to have caused his injury, knew of the existence of the defect or negligence, and thereafter remained or continued in the service and was injured, (c) where the injured servant “committed the negligent act causing the injury complained of,” meaning a breach of some duty by the servant whereby the defect, or negligence predicable of it, was caused by the act or omission of the servant suffering the injury, thus negativing in that respect the existence of a defense based on assumption of risk or contributory negligence other than may arise from the breach of duty by the servant to which we have last referred. See H. Ave. & B. R. R. Co. v. Walters, 91 Ala. 435, 443, 8 South. 357, 360, wheré it is said: “An employee cannot create or consent to the creation of a defect, and hold the company answerable in damages for any injury caused thereby.” To “remain in the employment” signifies continuing in the service or work of the master in the zone of possible danger of injury to that servant, who then knows of the existence of the defect or negligence to which under the first subdivision of the act (section 3910), his injury is attributed in his pleading. (3) In the light of these considerations it is manifest that plea 2 was subject to aptly grounded demur — 584 — rer. Under its obvious theory that plea was faulty in that it was not averred that the plaintiff was under the duty to remedy the defect described in the complaint, or that he committed the above-defined negligent act causing the injury complained of. But no ground of the demurrer took the objection indicated. The perhaps apt analogy afforded.by the ruling made in L. & N. R. R. Co. v. Wilson, 162 Ala. 588, 600-603, 50 South. 188, treating and sustaining plea 3, wherein it was simply averred that the plaintiff knew of the defect or negligence complained of, and failed to give information thereof, within a reasonable time, to the master or superior, to the effect that the matter of the master’s or superior’s knowledge of the defect or negligence complained of should be brought forward by replication to the plea, has not been overlooked or ignored. The court was divided in opinion on the question; but it was decided by the concurrence of four of the seven members. .The ruling has been since followed in S. S. S. & I. Co. v. Webster, 183 Ala. 322, 62 South. 764, which was concurred in by the full bench, except Dow-dell, C. J., who was not then sitting, but who was of the concurring members when the Wilson Case, supra, was decided. That matter must be now regarded as settled. But the analogy, if such it be, will not be accepted as influential in the method of pleading assumption of risk or contributory negligence under the added 1907 feature of the statute, section 3910. (4) Exceptions and provisos are said to denote distinct conceptions and to have in orderly pleading distinct effects. — Fike v. Stratton, 174 Ala. 541, 558, 559, 56 South. 929. And, when it comes to asserting a right or a defense in pleading under statutes or contracts containing exceptions or provisos, it is essential that the distinction be noted and observed. They are gen — 585 — erally defined in Fike v. Stratton, supra. So this sound general rule of pleading is thus set down in Bellinger v. State, 92 Ala. 86, 88, 9 South. 399, 400: “If there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; hut, if there be an exception in a subsequent clause, or subsequent statute, that is matter of defense, and is to be shown by the other party.” See, also, Sims’ Case, 135 Ala. 61, 33 South. 162; Bell’s Case, 104 Ala. 79, 15 South. 557. The last sentence in the added 1907 feature of section 3910 is, so far as that addition is concerned, an exception, not a proviso. The two circumstances therein defined, under which assumption of risk or contributory negligence are available to the master as defenses, are descriptive of the classes of servants who may be guilty of assumption of risk or of contributory negligence, and thus effects to define, so far as that addition to the statute does define, who may not be precluded of a recovery by reason of the assumption of the risk or by reason of contributory negligence. The exception, the “unless” sentence, in the addition to the statute, is hence an element of the “enacting clause,” and, in consequence, the affirmative obligation is on the pleader (the defendant), Avho would assert the defenses mentioned in the addition to the statute, to exclude the injured servant by positive averment from the stated exceptions in the statute. So, we repeat, plea 2 in this case was faulty, and should have been demurred to on the particular ground stated. (5) It is clear that the given charge 2, quoted above, had the effect to eliminate any advantage to the defendant under the terms of its plea 2, a plea that was defective in the respects hereinbefore indicated. It is also clear that Avhen referred to the evidence, as must be done, the charge thus given for the plaintiff was with — 586 — out fault-. So the question is made by this status: A bad plea is sustained by properly overruling an ineffective demurrer, and the substance of the issue made by such plea is withdrawn from the jury’s consideration by a special charge, requested by the plaintiff, that correctly stated the law of the case if the plea had been aptly phrased to assert a possible defense under the evidence which canned no affirmation or inference that the plaintiff “committed the negligent act causing the injury complained of.” It has been long, if not from the beginning, established in this jurisdiction that in actions at law parties may try their causes upon such issues as they choose; and the result, in actions at law, should, if free from error, be in accordance with the issues made by the pleadings. — Glass v. Meyer Co., 124 Ala. 332, 26 South. 890, among others. So, when issue is joined on either an immaterial or a defective plea, without first testing it by appropriate demurrer, the substance of such pleas constitutes the issues litigable; and, if there is evidence tending to support such pleas, the court will err if it withdraws from the jury’s consideration the issues made by such pleas. — Mudge v. Treat, 57 Ala. 1; Mobile Ry. Co. v. Watters, 135 Ala. 227, 230, 33 South. 42. It thus results that the sufficiency or materiality vel non-of a pleading cannot be tested by an instruction to the jury, though it would not be prejudicial error to eliminate from the jury’s consideration the issues tendered by a pleading if a material averment thereof was entirely without support in the evidence. Hence the trial court was in error in giving, at plaintiff’s request, the special instruction hereinbefore quoted, for the reason that it eliminated the issues made by the allegations of plea 2, upon which issue was taken, unless there was no evidence to support a material averment — 587 — of that plea. The substance of the plea as written is that the plaintiff knew, or, if he had exercised due care, would have known, that loose rock or slate was in the roof of the mine; that it was likely to fall; that there was danger of injury to him if he went under said loose rock or slate; and that, notwithstanding, he negligently went under the loose rock or slate, which, falling, injured him. The entire evidence has been carefully considered. It is clearly impossible to say that any one of the material averments of plea 2 are without support in the evidence. In consequence, it must be ruled that the court erred, under the issues made by the averments of plea 2, in giving the special charge quoted, and that this error was prejudicial to the appellant. . For that the judgment must be reversed. (6) There is no merit in the second assignment of error. The instruction therein quoted will be shown in the report of the appeal. It dealt with the awarding of damages for pain and suffering, if the bases for such were found by the jury to have existed. There is no legal standard for the measurement of such damages. — W. U. Telegraph Co. v. Sneed, 115 Ala. 670, 676, 22 South. 474. The sound impartial discretion of the jury must be invoked in the ascertainment of damages on those accounts. If the charge possessed misleading-tendencies, the defendant should have requested explanatory instructions. — Randle v. B. R., L. & P. Co., 169 Ala. 314, 322, 53 South. 918. There were tendencies in the evidence to invite a finding that the unconsciousness mentioned in brief for appellant was in consequence of the injury plaintiff received in defendant’s mine. (7) The requested instruction set out in the fourth assignment was refused without error. “Impractica — 588 — ble,” tbe important word in tbe charge, is too indefinite a term to serve the purpose of defining the measure of a duty or of excluding as a breach of duty an omission to do a certain thing with a view to the safety of others. (8, 9) The subjects of assignments numbered 7 and’ 8 are plainly without merit. Assignment numbered 6, not being insisted upon in brief, was waived. For the error indicated, the judgment is reversed, and the cause is remanded. Reversed and remanded. Anderson, C. J., and Sayre and Gardner, JJ., concur.