Bridges v. Tennessee Coal, Iron & Railroad , 109 Ala. 287 ( 1895 )

COLEMAN, J,

The action was instituted under the Employer’s Liability Act (Section 2590 of the Code of 1886), by appellant, to recover damages resulting from the death of plaintiff’s intestate, who at the time of the injury was an engineer in the employment of defendant. The complaint contains four counts, the first three of which are framed under subdivision one of Section 2590, and the negligence averred in these counts consisted in a defective locomotive and boiler. The fourth count was framed in part under the third subdivision, and in'part under subdivision one, supra. This count avers that deceased was injured while conforming to the orders of one McKenzie, whose orders he was bound to obey. The count then proceeds to allege that .the danger of conforming to the order, which was simply to use the engine, consisted in the defective boiler. We are of opinion that subdivision three, supra, was not intended to provide a cause of action in a case which properly is embraced within subdivision one, supra. These are independent the one of the other, and each has a different field of operation. It is true that if the grounds provided for in two or more of the subdivisions concur to produce the injury, it may be so averred in the same count; but, to authorize a recovery under such a count, the plaintiff must establish both allegations of negligence, and if, under the pleadings and evidence, it is shown that plaintiff has failed to sustain the action upon either ground, upon a count thus framed, he must fail in the suit, as much so as if he had averred but the one which was not sustained. The record does not sustain the contention that the court sustained a demurrer to the fourth count after it was amended. The defendant pleaded the general issue, and several special pleas. The case was tried principally upon the 9th, 10t.li and 11th special pleas, which set up the contributory negligence of the deceased. The negligence of the deceased, as pleaded, consisted in his remaining in the employment of thfe defendant, and his continued use of the defective boiler and locomotive, an unreasonable length of time after the deceased was aware of their defective and dangerous condition, and after deceased knew that defendant'knew of their defective and dangerous condition, and .the refusal of the defendant to repair the same.. The plaintiff filed several replications to these pleas, to all of wh ch the court sustained a demurrer, except the third replication. We are of opinion that the court did not err in its ruling upon the demurrer to the replications. An examination will show that these replications, which should confess the facts of the pleas, and avoid them by further averments of facts, not inconsistent with or a departure from the case made by the complaint, either merely traverse the facts of the plea, or depart from the case .made by the complaint, or failed to avoid them. So far as these replications traverse the facts averred in the plea, the plaintiff got the full benefit of them upon issue joined upon the pleas. After a full discussion and review of the authorities we declared in the case of Birmingham Railway & Electric Co. v. Allen, 99 Ala. 359, the doctrine “volenti non fit injuria” applied under the Employer’s Liability Act, and that where an employe, lcnowing and appreciating the danger and risk, elects voluntarily to encounter them, and is injured, he can not maintain an 'action to recover damages for the injury 'sustained. But if the employer undertakes, expressly or impliedly, to remedy the defect and remove the danger within areasonabletime, such an undertaking or assurance is an assumption by the employer of the risk incident to' the duties of the employment, during such reasonable time, and if the employe is injured in the meantime, by reason of the risk and danger thus assumed by the employer, the latter will be held responsible for the injury. If the employe remains in the service, and continues to encounter voluntarily and with a knowledge and appreciation, of the risk, without such assurance, or after the time' wi.tliin which the defect should have been remedied and the danger removed, according to such undertaking or assurance, the risk becomes his own. — Allen Case, supra; Eureka Co. v. Bass, 81 Ala. 200; Georgia Pacific R. R. Co. v. Davis, 92 Ala. 300. The pleas brought the defense fairly within the principles declared in these cases.

The evidence in the case is full - and uncontradicted that, for months prior to his injury, the plaintiff’s intestate knew the dangerous condition of the boiler, that he knew the great peril to which he was exposed whenever he used it. He had said as much on many occasions himself, and had been told of the danger by experts. That, notwithstanding the information imparted to him, and his complaints as to the condition and the danger of using the boiler, he continued to use it. These'facts were known to him on the morning of the fatal explosion, and he stated that he would worry with the boiler until the end of the month, which was only four days later, at which time it was his intentipn to quit the service until the boiler had been thoroughly repaired. The deceased seems to have been a competent and faithful employe, and his great desire to serve the defendant no doubt was the controlling inducement to remain in its service, and undertake and assume the great peril which finally resulted in his death. These considerations can not affect the application of j ust principles of law. A person who knows the peril of an undertaking, and voluntarily assumes it, cannot be-wholly irresponible for the result.

The appellant contends that the question of contributory negligence should have been left to the Jury. This is the correct practice where the facts admit of different conclusions, but where the facts leave no inference open but one, the law declares the conclusion. Under the issue joined and the evidence, the defendant was - entitled to the general charge.

There is no.error in the record, and the judgment must be affirmed.

Affirmed.