Opinion
7 Div. 248.
November 30, 1922. Rehearing Denied January 18, 1923.
Appeal from Circuit Court, Shelby County; A. B. Foster, Judge.
Leeper, Haynes Wallace, of Columbiana, for appellants.
A complaint averring negligence in general terms, and then averring particular acts constituting the alleged negligence, unless the acts set out in themselves amount to negligence, the complaint is demurrable. 159 Ala. 276, 48 So. 682; 149 Ala. 529, 43 So. 33; 190 Ala. 142, 67 So. 238; 204 Ala. 544, 86 So. 469. When contributory negligence is specially pleaded, plaintiff joins issue upon the same, and both he and his witness testify that they had knowledge of the dangers set out in said plea, and no one denies the same, this is a complete answer to plaintiff's count 1, and where such is the fact the affirmative charge should be given when requested in writing as to that particular count. 100 Ala. 618, 13 So. 615; 90 Ala. 185, 8 So. 518, 11 L.R.A. 674. In order to prove negligence, it is necessary to show by some kind of evidence that the agent or servant in charge of the instrument had some notice or knowledge, or facts in his possession which would lead a reasonable man to believe, that some one would be in danger by reason of his handling the instrument, as the testimony shows the same was handled, and where there is no such testimony the affirmative charge should be given upon the written request of opposing party. 79 Ala. 230; 86 Ala. 278, 5 So. 438, 3 L.R.A. 406.
Longshore, Koenig Longshore, of Columbiana, and Brown Denson, of Birmingham, for appellee.
The fact being stated from which the duty legally arises, a general averment that defendant negligently injured plaintiff is sufficient. 94 Ala. 214, 10 So. 145. Assumption of risk arises out of contract; and, although a person assumes all the risks of the service in which he voluntarily engages, he does not assume any risk arising out of negligence. 135 Ala. 406, 33 So. 181; 132 Ala. 459, 31 So. 527; 138 Ala. 499, 35 So. 457; 153 Ala. 98, 45 So. 151, 16 L.R.A. (N.S.) 467; 163 Ala. 229, 50 So. 919, 136 Am. St. Rep. 69; 172 Ala. 512, 55 So. 211. The bill of exceptions does not purpose to set out all or substantially all of the evidence, and hence the court will not review the giving and refusal of charges. 180 Ala. 407, 61 So. 898; 101 Ala. 264, 13 So. 755; 128 Ala. 633, 29 So. 586; 143 Ala. 524, 39 So. 277; 171 Ala. 216, 55 So. 93; 139 Ala. 240, 35 So. 691; 163 Ala. 592, 50 So. 1036; 132 Ala. 264, 31 So. 78; 165 Ala. 349, 51 So. 763; 83 Fla. 377, 91 So. 269.
Appellee was injured while working for an independent contractor who was engaged in repairing machinery for appellant upon the premises of the latter, and recovered a judgment for the damages sustained, from which defendant prosecutes this appeal.
Plaintiff states his cause of action in two counts; the first resting for recovery upon the simple initial negligence of one Seale, the servant or agent of defendant, acting within the line and scope of his employment, in the operation of the elevator of defendant. Count 1 discloses that the plaintiff was rightfully upon the premises as an invitee of defendant, and the defendant owed him a duty of reasonable care to avoid injuring him. This count sufficiently discloses the relationship out of which this duty arose, and a negligent breach thereof. The more specific matters insisted upon by counsel would more properly arise upon the question of contributory negligence. Doullut Williams v. Hoffman, 204 Ala. 37, 86 So. 73; M. O. R. R. Co. v. George, 94 Ala. 199, 10 So. 145. There was no error in overruling the demurrer to this count.
It is next insisted there was error in sustaining demurrers to pleas 3 and A, which counsel for appellant state are pleas of assumption of risk. Pleas of this character arise out of contracts between the parties (Kansas City, M. B. R. Co. v. Flippo, 138 Ala. 487, 35 So. 457), and, it would seem, are here inapt (Melton v. B. R., L. P. Co., 153 Ala. 98, 45 So. 151, 16 L.R.A. [N. S.] 467). Moreover, for aught that appears in these pleas, the danger to which plaintiff was exposed was the result of negligence of defendant, which is never assumed. Bierley v. Shelby Iron Co., ante, p. 25, 93 So. 829.
Counsel for appellant argue there was error in sustaining demurrer to pleas 4, 5, 6, 7, and 8, which are pleas of contributory negligence, but demurrer was not sustained to plea 7. These pleas purport to be pleas of contributory negligence. Plea 7, to which demurrer was not sustained, sets up the same defense of contributory negligence as these other pleas, but carried with it none of the additional burdens with which the other pleas were incumbered. In addition to this, these defenses were also set forth in pleas B, C, and D, to which demurrer was overruled. The averments of these pleas disclose by comparison that defendant received the full benefit of this defense, as shown to be set up in the pleas to which demurrer was sustained, and therefore in no event could the defendant be said to have suffered any injury. It therefore becomes unnecessary to enter into a consideration of the sufficiency of these pleas as against the demurrer interposed thereto.
Nor can reversible error be rested upon the refusal of the affirmative charge, as the bill of exceptions does not show that it contains all, or substantially all, the evidence upon which the cause was tried.
Charge 19, requested by defendant, was properly refused, as it pretermitted a consideration by the jury of that portion of the evidence tending to show that the operator of the elevator was warned of plaintiff's peril in time to have prevented the injury.
The questions to witnesses — objections to which were interposed, and the rulings upon which constitute assignments of error 36 and 42, inclusive — call for a statement of collective fact, and the court committed no error in overruling the objections thereto.
There are numerous assignments of error which are merely stated in brief, but not argued, and are therefore considered waived.
We have here considered those assignments of error which have been treated by counsel for appellant in their brief, and, finding no reversible error, the judgment appealed from will be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.