Woodward Iron Co. v. Nunn , 204 Ala. 190 ( 1920 )

The first insistence of error in brief of counsel for appellant is that count 1 of the complaint is bad for failing to state how or in what manner plaintiff sustained his injuries, that is "whether his leg was broken by a fall, or whether by being run over by a tramcar, or the fall of rock from the roof, or any other manner." It is sufficient to say, in reply to this argument, that we find no ground of demurrer presenting this point.

It is next urged that count 4 was bad for the reason that it attempts to charge a cause of action both under the common law and the statute, or does not clearly show whether the pleader is proceeding under the one or the other. We find no ground of demurrer that presents this point, if said count be defective, and which we need not, therefore decide. The only ground of demurrer which even approaches the point argued is No. 3 of the first series, and which we do not think is sufficiently apt, as count 4 does not state more than one cause of action. Whether properly stated or not, the gravamen of the cause of action was a failure to provide the plaintiff a safe place within which to work, and whether the complaint attempts to charge a breach of the common law or the statutory duty, it does not state two separate and distinct causes of action.

Count 7 of the complaint was subject to the defendant's demurrer. It fails to point out, even in general terms, any act of negligence on the part of the alleged superintendent in respect to his duty while so engaged. It falls directly under the influence of Woodward Iron Co. v. Marbut, 183 Ala. 310,62 So. 804. See, also, Cahaba Co. v. Elliott, 183 Ala. 298,62 So. 808; Maddox v. Chilton Warehouse, 171 Ala. 216,55 So. 93; Southern Cotton Oil Co. v. Woods, 201 Ala. 553,78 So. 907.

It may be conceded that the mine was not inherently dangerous when the plaintiff was placed therein by the master, and that the danger subsequently arose as the result of negligence as to delegable duties, and that the defendant was therefore entitled to the general charge as to count 1. It is sufficient to say, however, for the purpose of the next trial, that there was evidence in support of count 3 sufficient to carry the same to the jury, and which said count should suffice upon the next trial. The jury could have well inferred negligence on the part of the superintendent, Johnson, in allowing or permitting conditions which caused or permitted the cars to run back and injure the plaintiff.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

SOMERVILLE, THOMAS, and BROWN, JJ., concur.