(82 South. 92)

#### SHELBY IRON CO. v. BEAN.

(7 Div. 971.)

(Supreme Court of Alabama.

June 29, 1918.

On Rehearing, May 22, 1919.)

1. Trial <&wkey;253(7) — Instructions—Ignoring Evidence.

Requested instruction predicating a verdict on part of the evidence or calculated to mislead jury by directing their consideration to part only of the evidence is properly refused.

2. Trial <&wkey;260(l) — Instruction — Refusal of Requests.

Requested instructions covered by the instructions given are properly refused.

On Rehearing.

3. Appeal and Error <&wkey;>518(3) — Record — Review of Ruling on Demurrer — A mended Pleading.

Overruling of demurrer to amended complaint cannot be reviewed where record on appeal shows only demurrer to original complaint, but fails to show that demurrer was refiled *to*amended complaint.

4. Master and Servant <&wkey;262(4) — Injuries to Servant — Plea of Contributory Negligence-Assumption of Risk.

A plea to a complaint counting on simple negligence that plaintiff was building a walkway down from top of iron furnace, and that, while so engaged, stock in furnace slipped, causing gases to escape, and that plaintiff negligently ran from safe place where he was into said gases, which proximately caused his injuries, *held*a good plea of contributory negligence, and was not a plea of assumption of risk.

5. Pleading <&wkey;8(17)— Conclusions — Plea of Contributory Negligence.

In action for injuries to employé a plea to a complaint counting on simple negligence *79that plaintiff was building a walkway down from ¡ top of iron furnace, and that, while so engaged, stock in furnace slipped, causing gases to escape, and that plaintiff negligently ran from safe place where he was into said gases, which proximately caused his injuries, *held*not objectionable as pleading mere conclusions.

Appeal from Circuit Court, Shelby County; Lum Duke, Judge.

Action by W. J. Bean against the Shelby Iron Company. From judgment for plaintiff, defendant appealed to Court of Appeals. Transferred from Court of Appeals under section 6, Act April 18, 1911, p. 449.

Reversed and remanded.

Leeper, Haynes & Wallace, of Columbiana, for appellant.

Longshore, Koenig & Longshore and Riddle & Ellis, all of Columbiana, for appellee.

MAYFIELD, J.

This is an action by a servant against the master to recover damages for personal injuries in consequence of the negligence of the master, or of his or. its servants or agents, for whose negligence the statutes of this state make the master liable.

The master in this case is engaged in the business of manufacturing pig iron by means of furnaces, and plaintiff is, or was when the injury occurred, employed by the master in the operation of its furnace or furnaces.

The complaint contained many counts, but all were eliminated, by means of which appellant cannot complain, except three counts, designated A, C, and D. To these counts demurrers were interposed, and the demurrers were overruled, which action as to count A is assigned and insisted upon as error to reverse by the master on the appeal.

Each count and the whole complaint is, of course, grounded upon actionable negligence, negligence which was a breach of duty owing by the master to the injured servant, negligence of the master, or of some of-its servants or agents as for whose negligence the statutes or laws make the master liable and require him or it to respond in damages to the injured servant.

The only negligence attempted to be alleged in count A is as follows:

> “And plaintiff avers that he suffered all of said injuries and consequent damages by reason of and as a proximate consequence of a defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the defendant, which defect arose from or had not been discovered or remedied owing to the negligence of the defendant or of some person in the service or employment of the defendant, and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition, in this: Said furnace or furnace stack was defective.”

This count is based on subdivision 1 of section 3910 of the Code, and practically follows the language of the Code provision. The objection pointed out by the demurrer, and here insisted upon as error, is in its failure to sufficiently describe any particular defect. The only attempt to describe any particular defect is in the last clause or phrase, “Said furnace or furnace stock was defective.”

It is well settled that our statute allows pleadings in the alternative, as is done in this case; but it is also well settled that a pleading containing such alternatives is no stronger or better than the weakest or worst of the alternatives. So, as to specification of defects, the count must be tested as if it merely alleged that the furnace was “defective.” Is this sufficient? We hold not. It is entirely too general. The court judicially knows, and, if not, the court alleges, that a furnace consists of many different parts, and that if a count utterly fail to point out any part of the furnace which was defective, it is too general.

The defendant has the right to be informed as to what particular part of the furnace was defective, or in what the defect consisted, though the plaintiff, under our rules of pleading, is not required to describe in detail the character or nature of the defect. In other words the count ought to inform the court and the defendant of some particular defect. This count utterly fails to inform the court or the defendant as to what is claimed to constitute a defect in the furnace; that is, whether it was a failure to provide it with all or any of the necessary parts thereof; or whether it was providing the furnace with defective or insufficient parts.

The plaintiff and the trial court relied upon the cases of Jackson v. Cunningham, 141 Ala. 213, 37 South. 445, and A. G. S. R. R. Co. v. Davis, 119 Ala. 572, 24 South. 862. While these cases have never been overruled, this court has repeatedly declined to extend the generality of the averment any further than it was extended in those cases. This was done in the case of Tennessee, etc., Co. v. Smith, 171 Ala. 251, 55 South. 170, in which we declined to extend it so as to hold that a defect described as being in “an entry to a coal mine” was sufficient. In the very recent case of Alverson v. Little Cahaba Coal Co., 77 South. 547,1 it was held that a count claiming damages as for an explosion in a coal mine, averring as negligence merely that “a portion of defendant’s mine was defective,” did not sufficiently describe the negligence complained of.

Here the injury was the alleged result of an explosion in a furnace, and the only description, excluding one of the alternatives, is that the furnace was defective. This, we hold, is too general.

There are other cases than these we have cited which condemn a count like the one in question. In Whatley v. Zenida Coal Co., *80122 Ala. 118, 26 South. 124, the description was that defendant failed to provide a man-way to its coal mine. The court held this count insufficient.

In this case, if the defect complained of was specified, it might appear that the failure to provide it was not a defect, or that that which was provided was all that the law required. The defendant and the court are left wholly to conjecture of what complaint is made, or whether or not, in fact or in law, there was any defect.

I-Iere it is shown that the defendant’s business consisted of operating furnaces for the manufacture of iron. Its plant consisted of a furnace or furnaces. To allege that one or all of its furnaces were defective was'little better than to allege that its plants, ways, works, or machinery was defective. In fact, its ways, works, plant, etc., consisted of a furnace or furnaces for the manufacture of iron. This was too indefinite. While the statute makes the master liable as for an injury to one of, his servants on account of any defect in his ways, works, plant, etc., some particular defect must be alleged and proven. It is not sufficient to merely follow the language of the statute without describing any defect.

The same is true as to other subdivisions of the act. The second subdivision makes the master liable as for the negligence of a superintendent while in the exercise of such superintendence, but some negligent act or omission of such superintendent must be alleged; it is not sufficient to merely follow the language of the statute. Maddox v. Chilton, etc., Co., 171 Ala. 216, 55 South. 93; Woodward Co. v. Marbut, 183 Ala. 310, 62 South. 804.

In the last case cited the decision followed the former, and distinguished the two cases from previous ones. It was there said:

> “A complaint brought under an Employers’ Liability Act should conform to the general rules of pleading in matters of certainty.”

> “A complaint brought under Employers’ Liability Act, which merely alleges the injury and that it was caused by the negligence of the superintendent of the master is not sufficient, although it follows the language of subdivision-2, § 3910, Code 1907; the field of superintendence is a wide one, covering generally the master’s business, and the mere allegation of the negligence of the superintendent does not give the master sufficient notice as to the matters charged.”

> “The rule of this court has been that a complaint under the Employers’ Liability Act should, in respect of certainty, conform to those rules which under our system apply to pleadings generally. Those rules permit the averment of conclusions, but conclusions when employed must ordinarily be accompanied with averments of fact whereon issues can be understood, joined, and tried. L. & N. R. R. Co. v. Jones, 130 Ala. 470, 30 South. 586, citing Leach v. Bush, 57 Ala. 145, upon which have been planted all those numerous cases in which great generality in the averment of negligence has been accepted as meeting the requirements of good pleading.

> “Certainty to a common intent in pleading is essential to the due administration -of justice, and it cannot be abolished, tly certainty causes and issues are identified for the determination of jurisdiction, and thereby the protection of parties against repeated trials of the same case, the finality of elections of remedies, the comity of courts, and other conserving principles of procedure are assured. 2 Hughes on Prop. 474. And, to come nearer to the needs of the instant case, certainty in some degree is required to give adversary parties reasonable notice of what they must be prepared to meet, and to speed the disposition of causes under their merits. T. C. I. Co. v. Smith, 171 Ala. 251, 55 South. 170.”

183 Ala. 313, 314, 62 South. 805.

“In Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 South. 445, a count under the first subdivision averring that ‘the said railway from which the said engine was derailed at or near the point of derailment was defective’ was held good, the court saying that the term ‘railway’ was used in the pleading merely to designate that from which the engine was derailed, and must in srfch use be construed as synonymous with ‘track.’ But it has been held all along that counts under that subdivision of the statute must specify the defect in defendant’s ways, works, machinery, or plant of which they complain. Whatley v. Zenida Coal Co., 122 Ala. 118, 26 South, 124; Whitmore v. Ala. Consol. Co., 164 Ala. 125, 51 South. 397, 137 Am. St. Rep. 31; T. C. I. Co. v. Smith, supra.” 183 Ala. p. 315, 62 South. 805.

There was no error in sustaining plaintiff’s demurrers to each of defendant’s special pleas 3 and 4 of contributory negligence. They failed to state any facts which, as matter of law, showed the plaintiff to be guilty of contributory negligence. Plea 4, the best of the two, of course confessed that plaintiff was in a position of peril, and in danger of being burned, and that his running therefrom was but obeying a law of nature. It showed that he had no time or occasion to reason as to whether it was safer to remain, or to go thence to seek a place of safety. Under such conditions the law does not hold one to the duty of acting as a reasonably prudent person would act.

“In Cook v. C. R. & B. Co., 67 Ala. 533, this court quoted with approval what is said in Wharton on Negligence, § 304, viz.: ‘As a rule, therefore, we may say that a person is not chargeable with contributory negligence who, when unwarned peril comes on him, suddenly acts wildly and madly. Por persons in groat peril are not required to exercise all the presence of mind and care of a prudent, careful man; the law makes allowances for them, and leaves, the circumstances of their conduct to the jury.’ Such a person, as was said in the case cited, ‘will be presumed, in the absence of any evidence throwing light upon the matter, to have-observed that care and precaution which the law requires, as instinct would prompt him to-use diligence in saving his life.’ The presump*81tion is always indulged, when one’s conduct or motive is to be inquired about, that, if sane and conscious, he had the highest motive to take the necessary precaution to save his life, or insure his safety, and that he so acted. Penn. R. R. Co. v. Weber, 76 Penn. St. 157; s. c., 18 Am. Dec. 407.” L. & N. R. R. Co. v. Thornton, 117 Ala. 282, 23 South. 781.

In such cases no two prudent persons would probably do the same thing. The law furnishes no standards for action in the matter. The reason cannot be consulted. Each acts from instinct, or the law of nature — self-preservation.

It would do no good to discuss each of the several charges refused to the defendant. Many of those assigned and argued were in effect the general affirmative charge as to one of the counts, or as to the pleas of contributory negligence. The evidence clearly made the right of recovery a question for the jury.

[1, 2] Many of the others were properly refused because they predicated a verdict on a part of the evidence only, or were calculated to mislead the jury by directing their consideration to a part only of the evidence. Moreover, the court gave, at the request of the defendant, many written charges which, in legal effect and in better language, covered or embraced every | proposition of law involved in the ease as to which charges were requested and as to which the defendant was entitled to instructions; other than 'those we have shown to have been properly refused.

While charge A has been held good in some cases, owing to the particular kind of injury and the evidence in the particular case, such charge was not proper in this case.

The other questions may not arise on another trial; but it is not improper to say that they have been examined, and we find no reversible error assigned or insisted upon, except the one we have pointed out.

Reversed and remanded.

ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.

1

201 Ala. 123.

On Rehearing.

MAYEIELD, J.

[3] On application for rehearing a majority of the members of the court are of the opinion that the condition of the record is such that we cannot review the ruling of the trial court in overruling the demurrers to 'the amended or substituted complaint. This for the reason that the record fails to affirmatively show that the demurrers filed to the original complaint were refiled to the substituted complaint.

While the record does show a demurrer filed to the complaint and to each count thereof, the indorsement on the demurrer shows that it was filed before that of the substituted complaint, and hence of necessity must have been filed to the original complaint. The record fails to show that this demurrer, or any other, was refiled after the filing of the substituted complaint.' The minute entry, however, does show that the trial court overruled the demurrer to the amended or substituted complaint; but it does not show that the demurrer in the record, or any other, was refiled after the filing of the substituted complaint.

We therefore hold that we cannot review on this appeal the action of the court in overruling the demurr§r to the amended complaint.

The majority of the members of the court are of the opinion that this case cannot be distinguished from the cases of Cent. of Ga. Rwy. Co. v. Ashley, pro ami, 160 Ala. 582, 49 South. 388; Cooley v. U. S. S. & L. Co., 144 Ala. 541, 39 South. 515; B. R., L. & P. Co. v. Fox, 174 Ala. 657, 56 South. 1013, and other cases cited therein.

The writer desires to state for himself that, in his opinion, this case can be distinguished from any of our former rulings on the subject for the reason there was an entire substitution of the complaint, and not an amendment, as was in most, if not all, of the other cases decided by this court. Moreover, there was no action taken by the court as to the original complaint or the demurrer thereto, otherwise than to allow the complaint to be substituted by a new one filed; and this for the reason there was no necessity of refiling the demurrer, it being just as apt and appropriate to the substituted complaint as it was to the original complaint, and being good against either, and the judgment entry affirmatively showing that the sufficiency of the substituted complaint was tested by the demurrer. I am of the opinion that these facts’ and circumstances distinguish the case in hand from our former rulings. The majority of the members of the court do not agree with me that it can be so distinguished, and I yield my personal views to those of the majority as it relates only to a matter of practice and procedure. Certainty and uniformity in the rules of practice and procedure are almost, if not quite, as great a virtue as correctness.

[4] On this application the court has also reached the conclusion that plea 4 stated a good defense to the action as stated in the complaint. This plea is as follows:

> “Plea 4. Defendant avers that at the time of plaintiff’s injury he was assisting in building a walkway down from the top of the furnace known as furnace No. 2 at Shelby, Shelby county, Ala., that while so engaged in said work defendant avers that the stock in said furnace slipped, which caused gases to escape from the explosion doors on what is known as the down-comers, and defendant avers that, instead of remaining at the place assigned him to work, which was safe at said time, he the said plaintiff *82negligently ran away from said place and into said gases, which caused his said injuries. Defendant avers that plaintiff’s negligence in leaving his said place of safety proximately contributed to his said injury.”

If the facts stated in this plea are true, and on demurrer they must he so treated, the plaintiff’s own negligence proximately contributed to his injuries; that is, but for his own negligence in leaving a safe place at which he was put to work and going to an obviously dangerous one, that is, where there were escaping gases, he would not have been injured. If this he true, of course, he could not recover. It is a plea of contributory negligence, and not of assumption of risk, and hence it is a good defense to any count based on simple negligence. It is therefore not subject to the criticisms applied to pleas of assumption of risk, as distinguished from pleas of contributory negligence.

On the original hearing we fell into error in treating the plea as if it showed that by reason of defendant’s negligence danger suddenly came upon plaintiff, which prevented his exercising reasonable care and prudence and excused his actions which would otherwise be negligence. The error in the opinion was that the plea did not show these facts necessary to excuse plaintiff for leaving his safe place. They appear in the record, but not in the plaintiff’s evidence, and not in the plea. A replication setting up these facts would probably be a good answer to the plea, and proof of them would disprove the averments of negligence; but, these facts not appearing in the plea, the answer was not availing by demurrer.

[5] The plea is not open to the objection that it states no facts, but mere conclusions; it does state facts, and it need not state the evidence by which the facts are to he proven. The office of a plea is to state the proposed defense in a way to give plaintiff notice of the evidence which will be adduced in support of it. It is never necessary to state the evidence itself. No mere conclusion will suffice, but, where the general facts are stated, the word “negligently” is not without appropriate and effective uses. St. Louis & S. F. R. Co. v. Brantley, 168 Ala. 579, 53 South. 305; Pace v. Louisville & N. R. Co., 166 Ala. 519, 52 South. 52; City of Montgomery v. Wyche, 169 Ala. 181, 53 South. 786.

Plea 4 is not unlike a plea held good in the recent case of This Appellant v. Bierly, 80 South. 806.2 The complaints and pleas in the two cases are very much alike. Both cases are against the same defendant to recover damages as for the same accident — an explosion in a furnace. The pleadings in both cases, being drawn by the same attorneys, are very similar. The sufficiency of the pleas in the other case received a thorough consideration by this court on original submission and on rehearing, and the opinion in that case is apt authority herein.

The decision in this ease and in the Bierly Oase as to the sufficiency of pleas 3 and 4 in the latter case and to plea 4 in this case are distinguishable from the cases cited and relied upon by counsel for appellant. In some of those the pleas possessed alternative averments which made them bad. Such was the case in Osborne v. Ala. Steel & Wire Co., 135 Ala. 571, 33 South. 687 — one of the pleas was held bad for that reason, and the others failed to allege facts sufficient to raise a duty on the plaintiff. No such defects are to be found in the case in hand. If the facts set forth in plea 4 are true, then plaintiff was guilty of negligence, and that negligence proximately contributed to his injury. This is all that is necessary.

It results that the application for rehearing is denied, but the opinion is changed as indicated in response to the application.

2

202 Ala. 422.