#### Smith *v.*Watkins & Donelson.

*Injury to Servant.*

(Decided May 18, 1911.

55 South. 611.)

*Master wild Servant; Injury to Servant; Negligence; Complaint.*— The allegation in a complaint that the master negligently failed to furnish the servant with a reasonably safe place to work, being the equivalent of the allegation that the master failed to exercise reasonable care and- skill to furnish a safe place, is a sufficient allegation of negligence in that regard.

Appeal from Jefferson Circuit Court.

Heard before Hon. A. O. Lane.

Action by Ben Smith against B. 0. Watkins and J. E. Donelson, doing business under the firm name of Watkins & Donelson. From a judgment sustaining demurrer to the complaint, plaintiff appeals.

Reversed and remanded.

The complaint is as follows: “Plaintiff claims of defendant |30,000 damages, for that on, to wit, May 24, 1910, plaintiff, while in the employ of defendant, and while engaged in the actual performance of the duties of said employment, was injured in Jefferson county, *503state of Alabama, as follows : Tbe excavation in wbieb plaintiff was at work fell in. (Here follows a catalogue of his injuries, with special damages; tbe injuries being alleged to be permanent.) Plaintiff avers that said injury was proximately caused by tbe negligence of tbe defendant, which negligence consisted in this: Tbe defendant negligently failed to provide tbe plaintiff with a reasonably safe place for him to perform tbe duties of bis employment in.” Tbe demurrers were that it fails to show the nature of tbe work in which plaintiff was engaged; also fails to' show, except by way of conclusion, that tbe defendant breached any duty owed tbe plaintiff, because tbe complaint shows on its face that tbe plaintiff was constructing tbe place in which be was working, and under such circumstances no duty as alleged in the complaint rested upon tbe defendant.

Denson & Denson, for appellant.

Tbe complaint is clearly *sufficient.*— Gray *Eagle Goal Go. v. Lewis,*161 Ala. 417; *Woolf v. Smith,*149 Ala. 460; *Watford v. Ala, F. L, Go.,*152 Ala. 185.

Ullman & Winkler, for appellee.

Tbe court properly sustained demurrers to tbe *complaint.*— Merri*wethePs Case-,*161 Ala. 451; *Huyelo v. McNerney,*51 South. 928, and cases cited in appellant’s brief. See also *Tabler v. Pioneer M. & M. Go.,*52 South. 95; *T. G. 1. & R. R. Go. v. King,*50 South. 75.

ANDEBSON, J.

While it is not tbe absolute and unqualified duty of tbe master, under tbe common law, to furnish tbe servant a safe place in which to do bis work, it is bis duty to exercise reasonable skill and care to afford tbe servant a reasonably safe place within which to do bis work, and under our system of pleading the averment that- tbe master “negligently” failed to *504furnish or provide a reasonably safe place is the equivalent of averring that he failed to exercise reasonable skill and care to furnish a safe place, and is sufficient; and the complaint in the case at bar meets the former rulings of this court, and was not subject to the defendant’s *demurrers.*— Gray *Eagle Co. v. Lewis,*161 Ala. 417, 49 South. 859; *Wolf v. Smith,*149 Ala. 460, 42 South. 824, 9 L. R. A. (N. S.) 338. The complaint in the instant case is unlike the counts condemned in the case of *Merriweather v. Sayre Mining & Mfg. Co.,*161 Ala. 451, 49 South. 916, and *Huyck v. McNerney,*163 Ala. 244, 50 South. 926. The pleader, in count 13 in the *Merrhoeather Gase, supra,*was not content with charging a negligent failure to furnish a reasonably safe place, but followed it up with charging, in effect, that it was the master’s imperative' or unqualified duty to do so, when under the law he is only required to use reasonable care and skill in affording the place, and this was. the theory upon which count 13 was condemned in said *Merriweather Case.*Count 1 in the *Huyele Gase, supra,*also charged that it was the duty of the defendant to have in the building “good and safe tools.” The court condemned the count upon the theory that it was not the duty of defendant to jfumish good and safe tools, but that his obligation was discharged if he furnished instrumentalities reasonably safe and suitable. The count in the case at bar has no such superfluous charges or averments.

The trial court erred in sustaining the demurrer to the plaintiff’s complaint, which contained but one count, and the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and’ Sayre and Somerville, JJ., concur.