Conrad v. Gray , 109 Ala. 130 ( 1895 )

HEAD J.

The action was brought to recover damages for personal injuries sustained by the plaintiff by reason of an explosion of a boiler belonging to the defendant, in whose service the plaintiff was at the time engaged. A judgment was recovered against the defendant, and he appeals.

1. The first count of the complaint was based upon subdivision 1 of section 2590 of the Code. After alleging that the defects in the machinery had existed for a long time, and were known to the defendent, if distinctly avers, in substantially the statutory words, that the defendant had negligently failed to remedy the same, and, furthermore, that ne negligently permitted the boiler to be used and operated in the defective condition. This was clearly sufficient to save the count from the imputation of the fault which existed in the case of Seaboard Manufacturing Co. v. Woodson, 94 Ala. 143, s. c. 98 Ala. 378. In our practice, averments of the facts constituting nagligence consist of little more than the conclusion of the pleader. It was not necessary to charge ,in so many words, that a reasonable time within which to remedy the defects had intervened after their discovery, since this is necessarily embraced in the averment, that the defendant had negligently failed to remedy them. Louisville and Nashville Railroad Co. v. Hawkins, 92 Ala. 241. An averment of negligence is not required to be as full and specific as the proof essential to support it. The first count was in all respects sufficient, and the Circuit Court did not err in so holding on demurrer.

2. The second count was not based upon the statute, but rested the plaintiff’s right to recovery upon a breach of the common law duty a master owes his servent to use ordinary care in the selection and retention in. service of competent fellow servants. The count avers that the injury was caused by the negligence of the fireman, a fellow servant; that he was inexperienced and incompetent ; that the defendant employed him with knowledge of his inexperience and unskillfulness; and that the plaintiff was ignorant thereof. The averments of the facts were sufficiently specific to enable an issue to be framed thereon, and the demurrer to this count was properly overruled. Georgia Pacific Railway Co. v. Probst, 85 Ala. 203.

3. The defect in the machinery, which the first count charged caused the injury, and the manner of causing it, are thus averred : “The bolts that held or fastened the inner and outer lining of the boiler were negligently allowed to be and remain without the necessary screws or brads, so as to confine the steam in its -proper channel, and prevent it from escaping into the fire-box.” There is no evidence whatever tending to show that the explosion and consiquent injury to the plaintiff were produced in the manner here alleged, and the Oiicuit Court should have given the affirmative charge for the defendant on the first count. There was evidence tending to show that the explosion was induced by a defect in the safety valve, and other evidence tending to prove it was caused by negligence of the fireman, in allowing the water to get too low in the boiler, and the pouring-in cold water on hot tubes, but none whatever to support the above averments. On the contrary, one witness for the plaintiff testified that the steam and water did not escape into the fire-box, but outside ; and another stated that if it had so escaped into the fire box, it would only pat the fire out. A plaintiff mast establish his case as it is alleged.

4. The presumption as to fellow servants is that the master has exercised proper care in the selection of his servant, and hence liability for injury alleged to be caused by the incompetency of a fellow servant depends upon affirmative proof, not only that the servant was incompetent, but that it was known to the master, or by the exercise of due diligence would have been known to Mm. Bailey, Master’s Liability,p. 55. There is not a scintilla of evidence in the record that the fireman was incompetent to operate the boiler, or that the defendant was guilty of any negligence in employing or retaining him in the service. The undisputed evidence is that he had performed the same service for two other parties, who theretofore owned the engine, by whom he was recommended to the defendant; that he had been a fireman for at least fifteen months, without ever before having an accident, or having been guilty of an act of negligence, as far as appears, and that the duty of a fireman is simple and easily learned. Expert witnesses, who knew the fireman, and had often seen him operate the engine, testify that he thoroughly understood how to do the work. The simple fact that on this occasion he may have been guilty of negligence is not sufficient to authorize the jury to find against the defendant on the second count.. This single act of negligence would prove neither incompeiency nor notice to the master. Couch v. Coal Co. 46 Iowa, 17; Baltimore Electric Co. v. Neal, 65 Md. 431; Harvey v. Railroad Co. 88 N. Y. 481. The affirmative charge requested by the defendant on the second count ought to have been given.

5. The first and third charges given at the request of the plaintiff were erroneous, in that they assumed the existence of the delects in the boiler, in reference to which there was serious dispute; and the fourth charge improperly assumed that there was evidence tending to show that the explosion occurred on account of the defects alleged in the first, count, of which, as we have seen, there was no evidence. The fourth charge was also defective, as an abstract proposition, in omitting from the postulate a finding that, after knowledge of the defect, sufficient time had elapsed to allow it to be remedied, with the exercise of due care.

There are other assignments of error, but we do not deem it necessary to pass upon them. The matters complained of are not likely to arise in the same form upon another trial.

For the errors to which we have adverted, the judgment must be reversed, and the cause remanded.