Southern Railway Co. v. Grace

delivered the opinion of the court.

Appellee recovered a judgment in the court below against appellant for damages alleged to have been sustained by him by reason of a personal injury caused b'y defects in the tender or tank attached to appellant’s engine, of which appellee was fireman. As the injury complained of occurred in Alabama, appellant’s liability therefor must be determined by the laws of that state. That portion of section 1749 of the Code of Alabama of 1896, bearing on this controversy, is as follows: “When a personal injury is received by a servant or employee in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employee, as if he were a stranger, and not engaged in such service or employment, in the cases following: (1) When the injury is caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with, or used in the business of the master or employer. . . . But the master or employer is not liable under this section, . . . nor is the master or employer liable under subdivision 1, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to, the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition.”

The declaration alleged that appellee’s injury was caused “by reason of the defective and unsafe character and condition of machinery, ways, and appliances of said engine and tender thereto attached, to wit, defective drawbar and defective buffer *616casting, defective spring in the buffer casting, said defective equipment, appliances, and machinery causing entirely too much slack between said engine and tender or tank, . . . and said tender not being made for said engine, hence not properly constructed therefor, and thereby making it dangerous for plaintiff to do his work.” It did not allege that “the defect therein mentioned arose from, or had not been discovered or remedied owing to, the negligence of the master or employer, or of some person in the service of the master or employer, or of some person in the service of the master or employer and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition.” At the close of the evidence appellant requested the following instruction, which was refused by the court: “The court charges the jury for the defendant that the declaration in this case does not charge any negligence against the defendant, and they should find for the defendant.” The refusal of this instruction was fatal error. Seaboard Mfg. Co. v. Woodson, 94 Ala. 143, 10 South. 87; United States Rolling Stock Co. v. Weir, 96 Ala. 396, 11 South. 438; Walton v. Lindsey Lbr. Co., 145 Ala. 661, 39 South. 671; Birmingham Rolling Stock Co. v. Rockhold (Ala.) 42 South. 96; West Pratt Coal Co. v. Andrews, 150 Ala. 368, 43 South. 350.

It is argued on behalf of appellee that this defect in the declaration was waived by a failure to demur thereto. Where a declaration fails to state a cause of action, as in the case at bar, the defect may be reached by a general demurrer, the ground of which is never waived. It can be raised at any time and in any place. On another trial this defect in the declaration may be cured by a proper amendment.

Beversed md remanded.