Tabb v. Zieman

Alabama Court of Appeals

Tabb v. Zieman

100 So. 562, 20 Ala. App. 10, 1924 Ala. App. LEXIS 114

CourtAlabama Court of Appeals

DecidedApril 15, 1924

Docket1 Div. 544.

StatusPublished

Cited by2 cases

This text of 100 So. 562 (Tabb v. Zieman) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tabb v. Zieman, 100 So. 562, 20 Ala. App. 10, 1924 Ala. App. LEXIS 114 (Ala. Ct. App. 1924).

Pincite

Opinion

SAMFORD, J.

The amended complaint is in four counts, to all of which the trial court sustained demurrers. Thereupon, plaintiff took a nonsuit on account of the adverse ruling of the court and here assigns as error the rulings of the court on the demurrers. As we view it, it will not be necessary to consider any but the rulings of the court on demurrer to the fourth count.

This count was held to be good in A. G. S. R. R. Co. v. Vail, 142 Ala. 134, 38 South. 124, 110 Am. St. Rep. 23, and the opinion in the Vail Case was amply supported by the opinions in Ga. Pac. Ry. v. Davis, 92 Ala. 300, 9 South. 252, 25 Am. St. Rep. 47; S. & N. R. R. Co. v. Thompson, 62 Ala. 494; Laughran v. Brewer, 113 Ala. 509, 21 South. 415. The allegation in the complaint that, “by reason of said failure the same fell upon plaintiff’s hand,” etc., can only mean that the injury was proximately caused by the negligence theretofore alleged. The com-. plaint alleged that the defendant negligently failed to provide a sufficient number of men to handle said pitman. This, with the preceding allegation of the plaintiff’s duty to his employer and a description of the pit-man, was a sufficient allegation of negligence, which may be alleged in general terms. Assumption of risks and contributory negligence cannot be raised by demurrer, but must be specially pleaded. Bromley v. Birmingham Min. Ry. Co., 95 Ala. 403, 11 South. 341; First Nat. Bank v. Chandler, 144 Ala. 286, 39 South. 822, 113 Am. St. Rep. 39.

The court erred in its rulings on demurrer as to the fourth count, and for this, error the judgment is reversed and the cause is reinstated on the docket.

Reversed and rendered.

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SAMFORD, J.

The amended complaint is in four counts, to all of which the trial court sustained demurrers. Thereupon, plaintiff took a nonsuit on account of the adverse ruling of the court and here assigns as error the rulings of the court on the demurrers. As we view it, it will not be necessary to consider any but the rulings of the court on demurrer to the fourth count.

This count was held to be good in A. G. S. R. R. Co. v. Vail, 142 Ala. 134, 38 South. 124, 110 Am. St. Rep. 23, and the opinion in the Vail Case was amply supported by the opinions in Ga. Pac. Ry. v. Davis, 92 Ala. 300, 9 South. 252, 25 Am. St. Rep. 47; S. & N. R. R. Co. v. Thompson, 62 Ala. 494; Laughran v. Brewer, 113 Ala. 509, 21 South. 415. The allegation in the complaint that, “by reason of said failure the same fell upon plaintiff’s hand,” etc., can only mean that the injury was proximately caused by the negligence theretofore alleged. The com-. plaint alleged that the defendant negligently failed to provide a sufficient number of men to handle said pitman. This, with the preceding allegation of the plaintiff’s duty to his employer and a description of the pit-man, was a sufficient allegation of negligence, which may be alleged in general terms. Assumption of risks and contributory negligence cannot be raised by demurrer, but must be specially pleaded. Bromley v. Birmingham Min. Ry. Co., 95 Ala. 403, 11 South. 341; First Nat. Bank v. Chandler, 144 Ala. 286, 39 South. 822, 113 Am. St. Rep. 39.

The court erred in its rulings on demurrer as to the fourth count, and for this, error the judgment is reversed and the cause is reinstated on the docket.

Reversed and rendered.

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Bluebook (online)

100 So. 562, 20 Ala. App. 10, 1924 Ala. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tabb-v-zieman-alactapp-1924.

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