The decision in Sloss-Sheffield Co. v. Weir, 179 Ala. 227,60 So. 851, supports the proposition that the trial court committed no error in sustaining the demurrer to original pleas 2 to 6, both inclusive, and that these pleas, as amended by the addition of the averment that plaintiff's intestate voluntarily used the dangerous way — the judgment entry shows that plea 2 was amended along with the rest, but the amendment set out in the record does not purport to affect plea 2 — sufficiently answered counts 1 and 2 of the complaint, as the trial court ruled. The pleader, while framing his complaint with a view to realizing full advantage of the fact that plaintiff's intestate was not a free agent, was at pains to avoid the allegation that intestate was held to labor in defendant's mine as a convict, and argues now that the amended pleas too were bad; but this argument, coming from a successful plaintiff, needs no refutation. Speaking to the errors assigned by defendant, it is sufficient to state our opinion that the allegation that plaintiff's intestate "was being forced by the defendant, or the agents or servants of the defendant, acting within the line and scope of their authority as such, to labor in said coal mine for the defendant, against his will," appearing in the first count, and substantially the same allegation in the second count of the complaint, suffice to bring the case fairly within the influence of the decision noted above. In reaching this conclusion we have not overlooked Haigler v. Sloss-Sheffield Co., 187 Ala. 559, 65 So. 801. The circumstances shown in that case serve to differentiate it from the case now under consideration.
The ruling against original plea 7 is to be justified on the ground that defendant's rule therein alleged applied to employés, whereas, according to the complaint, plaintiff's intestate was not an employé, nor did the plea take issue upon this averment of the complaint. In King v. Woodward Iron Co.,177 Ala. 487, 59 So. 264, upon which appellant relies in this connection, the plaintiff was not held to involuntary servitude, as was the plaintiff's intestate here, was an employé, a free agent.
Judge Thompson (5 Thomp. Neg. § 5395) states a manifestly reasonable rule of law as follows:
"If a servant violates known rules devised and promulgated by the master to promote his safety, and is injured in consequence of such violation, he cannot make his own fault the ground of recovering damages from his master, but must take the consequences of his disobedience, his folly, or his recklessness."
This rule is maintained by the authorities generally (note ubi supra) and is the well-settled law of this state. Georgia Pacific v. Propst, 83 Ala. 518, 3 So. 764; Columbus Western v. Bridges, 86 Ala. 448, 5 So. 864, 11 Am. St. Rep. 58; Rome Decatur v. Chasteen, 88 Ala. 591, 7 So. 94; Pryor v. Louisville Nashville, 90 Ala. 32, 8 So. 55; Louisville Nashville v. Hawkins. 92 Ala. 241, 9 So. 271; Louisville Nashville v. Mothershed, 97 Ala. 261, 12 So. 714; Louisville Nashville v. Mothershed, 110 Ala. 143, 20 So. 67; Brown v. Louisville Nashville, 111 Ala. 275, 19 So. 1001; Shorter v. Southern, 121 Ala. 158, 25 So. 853. Defendant pleaded in defense — to state roughly the matter of defense — that plaintiff's intestate had voluntarily disobeyed its rule prohibiting the use of the slope and commanding the use of the manway, which rule was known to plaintiff's intestate, and the case went to the jury on this plea. This plea was proved without contradiction, and defendant was entitled to the general affirmative charge which it requested in due form. It is true that, if the rule, the disobedience of which is charged as contributory negligence, is so impracticable that it cannot be carried into execution, then, in the case of a servant at least, it is to be treated as waived by the master. It is also true that, if the master knowingly suffers his rule to be habitually violated by his servants, its observance is to be treated as waived by the master, and he will not be permitted to set up a violation as contributory negligence in an action against him by the servant. 5 Thomp. Neg. §§ 5397, 5404. The reason of the rule stated first above would make it applicable to the case of a person held to service, as was plaintiff's intestate in this case, and as to such person the master may waive a rule designed to conserve the safety of those under his command. Further along this line we need not go at this time, for there was no special replication to defendant's said plea, and the law of this court, in accord with an universally accepted principle *Page 291 of the common law, is that if any cause intervenes to prevent or excuse conformity with a rule, such cause is special matter of excuse or justification, which must be set up by replication and proved by the party relying upon it. Louisville Nashville v. Mothershed, 110 Ala. 154, 20 So. 67; Brown v. Louisville Nashville, 111 Ala. 289, 19 So. 1001. In the absence of a special replication of the character indicated, the trial court erred also in the rulings made the subject of the thirteenth, fourteenth, fifteenth and sixteenth assignments of error.
Other assignments of error require no special notice. The rulings there indicated will hardly recur in their present shape.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.