Sloss-Sheffield Steel & Iron Co. v. Smith , 185 Ala. 607 ( 1914 )

SOMERVILLE, J.

It was held on the former appeal, on substantially the same evidence as here offered, that the general affirmative charge was properly refused to defendant. Very clearly, Ave think, this case falls Avithin the principle approved in South. Ry. Co. v. Guyton, 122 Ala. 231, 241, 25 South. 34, 38: “It does not folloAV, hoAVever, that he [a servant] is guilty of negligence in Avorking merely because he knoivs the Avork to be dangerous, without regard to the degree of danger and risk involved, nor unless it Avould be of a degree Avhich would ordinarily deter one of ordinary prudence from the undertaking” — and announced in 1 Labatt on Master and Servant, p. 727, § 300. These were, on the whole evidence, jury questions, and the court did not err in refusing an affirmative instruction for defendant.

Counts 4 and 6 were not subject to the grounds of demurrer specified. Both grounds are refuted by the language of the complaint; and, while the complaint should perhaps have alleged that defendant had knowledge or notice of the incompetency or insufficiency of the workmen furnished for this work, before the accident (First Nat. Bank v. Chandler, 144 Ala. 286, 308, 39 South. 822, 113 Am. St. Rep. 39), the demurrer did not specify this deficiency, and the amendments, were in the very language of the demurrer.

The word “facilities,” in this connection, means convenient means, and ordinarily includes inanimate means rather than human agencies. As used in plea 3, “facilities, ropes, and appliances,” it is scarcely broad enough to cover the servants employed in the work, and so is not responsive to counts 4 and 6 of the complaint.

But, Avhether so or not, the allegation that the injury resulted from plaintiff’s negligent failure to have the “proper facilities, ropes, and appliances,” which Avere subject to his oavu selection, is no more than a denial of the special causes of action declared on in those counts, and Avas available under the general issue. Moreover, under other special pleas defendant had the full benefit of that line of defense.' There was no prejudicial error in sustaining the demurrer to this plea.

The question to plaintiff as to how many men were needed in raising the heavy timber by pushing with scantlings presented a proper subject for expert opinion, and its allowance was not error.

The judgment will be affirmed.

Affirmed.

Anderson, McClellan, and Sayre, JJ., concur.