Black v. Roden Coal Co.

Plea C was defective, and was subject to the plaintiff’s demurrer. It sets up no facts *537showing negligence on the part of the plaintiff’s intestate proximately contributing to his injury or death. It may have been his duty to remedy the defect, yet his failure to repair could not, in and of itself, proximately contribute to his injury. It does not charge him with any negligence in placing himself in a position of danger, but seeks to preclude a recovery upon the sole reason that the intestate negligently failed to remedy the defect, as it was his duty to do, and after knowledge of the defective condition of the roof. He is not charged with negligently placing himself within the zone of danger, and, from aught that appears from the said plea, except by way of a remote conclusion, the intestate’s failure to remedy the defect was not the proximate cause of his death. Moreover, the plea charges a mere knowledge of the defect, and not of the danger, and which renders -it bad, either as a plea of contributory negligence or assumption of risk. — Mascot Coal Co. v. Garrett, 156 Ala. 297, 47 South. 149; So. R. R. Co. v. McGowan, 149 Ala. 440, 43 South. 378; So. Cotton Oil Co. v. Walker, 164 Ala. 33, 51 South. 169; Tutwiler Co. v. Farrington, 144 Ala. 157, 39 South. 898.

Pleas 5 and D are good pleas of contributory negligence, and were not subject to the plaintiff’s demurrers, and which were properly overruled by the trial court. They charge that the intestate went under or dangerously near the roof with a knowledge, not only of the defect, but with a knowledge and appreciation of the danger, and the contributory negligence as therein set up could hardly be more definite or explicit.

Affirmed.

All the Justices concur as to pleas 5 and D; but a majority are of opinion that plea C was either good, or was not subject to the grounds of demurrer assigned *538thereto, whether good or not, and that the case should he affirmed.