Sloss-Sheffield Steel & Iron Co. v. Webster

ANDERSON, J.

— While the record in this case was not filed in this court until the spring call of the sixth division, and after the first Monday after the expiration of 20 days from the date of taking the appeal, yet it was filed at the first call of the division to which it belongs (the sixth division) after the appeal was taken, and the motion to dismiss the appeal is overruled.-— National Union v. Sherry, 180 Ala. 627, 61 South. 944.

Section 3910, among other things, says; “the master or employer is not liable under this section, if the servant or employee knew of the defect or negligence causing the injury, and failed in a reasonable time to give information thereof to the master or employer, or to some person superior to himself engaged in the service or employment of the master or employer, unless the master or employer, or such superior, already knew of such defect or negligence.” It seems that the master or employer sets up a good defense when he avers that the servant was aware of the defect or negligence complained of, and failed within a reasonable time to inform the master or some person superior to himself of same. It is true the statute relieves the servant from informing the master if the master already knew of same, but knowledge of the master or superintendent need not be negatived in the plea, but is affirmative matter that must be pleaded and proven by the plaintiff:, and should be brought forward by a replication. This identical question was so decided in the case of L. & N. R. R. Co. v. Wilson, 162 Afa. 588, 50 South. 188 (see plea 3). It is true, that there was division among the judges, but the holding of the majority must be followed as the law which controls the case at bar. We, therefore, hold that the trial court erred in sustaining the demurrer to defendant’s original plea 10.

It is true that this plea contained more than plea 3 did in the Wilson Case, supra, by charging that it was the plaintiff’s duty to remedy the defect, but this was something of which the plaintiff could not complain. Nor did it render the plea subject to demurrer for duplicity, even if the plea was duplex, which we do not •decide. — L. & N. R. R. Co. v. Gray, 154 Ala. 156, 45 South. 296.

We are not impressed with appellee’s suggestion that this court can say that this error was without injury. It may be that the _ defendant’s superintendent knew that the track was too close to the prop, or that the plaintiff had put the prop too close to the track, but it would be questionable if the latter was a defect in the track chargeable to the master, a question, however, that we do not decide; for, if the defendant’s contention be conceded in this particular, the fact remains that there was proof from which the jury could have inferred that the injury proximately resulted from a defect in the car, and not in the track, and the undisputed evidence does not show that the defendant or its servant knew of the defect in the car. The complaint, first and last, contained 27 counts, but all of which were eliminated except counts A, F, G, and N, two of which charged a defect in the track, and the other two charged a defect in the car, and there was proof from which the jury could infer that a defect in the car caused it to knock out the prop, and thereby caused the rock to fall upon the plaintiff. Neither did the other special pleas, to which no demurrer was sustained, fully cover the defense set up in iilea 10.

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

Reversed and remanded.

All the Justices concur, except Dowdell, C. J., not sitting.