Osborne v. Alabama Steel & Wire Co. , 135 Ala. 571 ( 1902 )

SHARPE, J.

To withstand an appropriate demurrer, a plea of contributory negligence must go beyond averring negligence as a conclusion and must aver a state of facts to which the law attaches that conclusion.—Tenn. Coal, etc., Co. v. Herndon, 100 Ala. 451; Louisville & Nashville Railroad Co. v. Markee, 103 Ala. 160. Of the pleas referred to in the assignments of error that numbered 3 conforms to the rule stated, but those numbered 4, 7 and 8, respectively, are fatally defective. The averments of plea 4 respecting the danger involved in crossing the waterway wherein plaintiff’s intestate lost his life are but restatements of facts alleged in the complaint and to that extent are in confession rather than in avoidance of the complaint. The other aver-ments in that plea of facts as constituting, contributory negligence, show merely there was a Avay known to the intestate by which he could have gone without crossing the waterway and that “lie knew or could have known by the use of due care” that circumstances then and there existing rendered his attempt at crossing the waterway dangerous. , According to the complaint the circumstances which created the danger and constituted the defect of way complained of ivas the partially uncovered condition of the waterway. Unless the intestate had notice to the contrary he had a right to assume, and to act upon the presumption, that defendant had not been negligent, and, therefore, that the Avay Avas in a reasonably safe condition.—Georgia Pac. R. Co. v. Davis, 92 Ala. 300; L. & N. R. R. Co. v. Bouldin, 121 Ala. 197. Therefore, notice of the defect and danger of the waterway covering must have been chargeable to the intestate as a condition precedent to the erection of any duty on his part in respect to choosing between routes, or of otherAvise using special care to avoid the danger of the AvaterAvay. In this plea it is improperly assumed that the duty of using such care Avas on the intestate in the first instance, regardless of whether he then had notice of the defect complained of.

An employe may be negligent in failing to give notice of defects in his employer’s ways, works, plant or machinery when to do so is necessary for his own protection, and he may be negligent also in .the manner of prosecuting his work by failing to nse due care to avoid danger created by the defects, but his mere continuance in the service for which he was employed, though with knowledge of such defects and danger, cannot, as between him and the employer be accounted an act of negligence. The employer cannot, treat as a breach of duty, but is held to sanction, that which by contract-of employment he has required the employe to do.—Snow v. Housatonic, etc., R. Co., 8 Allen (Mass.) 441. In Bailey’s Per. Inj., §1116, it is said: “The mere fact that the employee knew that the work was manifestly dangerous of itself does not constitute contributory negligence. If it is shown that he used that which was dangerous in a negligent manner this would be contributory negligence.” The same principle is announced in Mobile & B. R. Co. v. Holborn, 84 Ala. 133, and in Highland Ave., etc., R. Co. v. Walters, 91 Ala. 435. “A person who continues in an employment with full knowledge of the risk run, and who voluntarily goes to do that which he knows will expose Mm to danger, cannot recover for injuries so received.” Such is the Iuav as stated in the leading case of Thomas v. Quartermain, 17 Q. B. D. 414, and as recognized by this court.—Birmingham R., etc., Co. v. Allen, 99 Ala. 359; Bridges v. Tenn., etc., Co., 109 Ala. 287; Southern R’y Co. v. Guyton, 122 Ala. 238. The decisions in Mobile, etc., R. Co. v. Holborn and Highland Ave., etc., Co. v. Walters, supra, though correct on the point to Avhich Ave have cited them, have been in effect overruled so far as they held that the employer’s liability act operated as between employer and employe to abrogate the doctrine of violeñti non fit injuria. That doctrine is founded on the consent express or implied of the employe to take the chances of injury or escape from a threatening situation, but such consent is not implied unless the danger is obvious or is known to the employe. Plea 8 including the facts it refers to as stated in the complaint, fails to sIioav that the defect in the covering of the Avaterway was obvious or was known to plaintiff’s intestate in time for bim to choose between leaving and remaining in service before be actually encountered the danger. The averment, of this plea imputing knowledge or notice to tlie intestate being in the alternative, is no stronger than would be an averment of notice alone, and notice is not the equivalent of knowledge. Notice may consist merely of information as to collateral facts sufficient to excite inquiry and which an ordinarily prudent person would follow to a knowledge of the main fact. Brown v. L. & N. R. R. Co., 111 Ala. 275, 288; Southern R. Co. Bunt, 131 Ala. 591; 32 So. Rep. 507; Mobile, etc., R. Co. v. Felrath, 67 Ala. 189.

Neither pleas. 7 nor 8 purports to show the intestate was in default in respect of giving information of the defect in question so as to (exempt defendant from liability under subdivision 5 of section 1749 of the Code.

Reversed and remanded.