The complaint, as originally framed, contained seven counts. To each of these counts, except the fifth, a demurrer was sustained. All of these counts, except the fifth and seventh, Avere amended so as to state a cause of action under subdivision 1 of the employer’s liability act (section 1749 of the Code of 1896). As amended they were not subject to the demurrers interposed.
The seventh count must be treated as having been eliminated from the complaint. To it the demurrer Ava-s sustained, and it does not appear that it Avas subsequently amended to meet the ruling. The fifth, to which the demurrer was overruled, states a cause of action at common law, and not under the statute, as seems to be sup*368posed by counsel for appellant, and was clearly not subject to the demurrer. — Laughran v. Brewer, 113 Ala. 509, 21 South. 415; Tutwiler Coal, Coke & Iron Co. v. Farrington, 144 Ala. 157, 39 South. 898.
The ninth count, which was added by Avay of amendment, was not subject to any of the grounds of demurrer' interposed to it. Indeed, those grounds Avhich seem to be insisted on are in contradiction of the averments of the count. Whether the count was entirely unassailable we do not determine. All that we hold on this point is that, if defective, the defect was not pointed out by the demurrer. —See Williamson Iron Co. v. McQueen, 144 Ala. 274, 40 South. 306; Reno’s Employer’s Liability Act, § 57.
' A number of special pleas were filed. Many of these were held insufficient. Plea 2 Avas faulty in imposing upon the plaintiff the anticipation of negligence on the part of defendant or its servants. Furthermore, it fails to aver that plaintiff had knoAvledge that the position assumed by him on the car Avas a dangerous one. The averment that he “negligently placed himself in a position on said car where, if said rock should fall by the breaking of the rope that hell the same, or from other causes, the plaintiff would likely be injured by said rock falling upon him,” is wholly insufficient; no fact being alleged imputing knoAvledge of the danger to the plaintiff. Upon the consideration last adverted to, pleas 3, 4, and 5 Avere bad. “The fact that tire party AAras injured because of the way selected, when if he had selected the other way the injury Avould have been avoided, alone, does not fix upon his contributory negligence. Thé result is not the true test. If a party selects a dangerous way to perform a duty when there is a safe Avay, knowing the way selected to be dangerous, or if the danger ‘is ¿pparent’ or ‘obvious,’ then he assumes the risk *369and is guilty of contributory negligence.” — T. C. I. & R. R. Co. v. Herndon, 100 Ala. 451, 14 South. 287. Plea 6 contains no averments of fact relied upon as defense, but states conclusions merely. Plea 7 contains no averment that the superintendent had authority to give the orders alleged to have been violated by plaintiff. Furthermore, substantially the same defense attempted to be set up by it was set up in plea 15, upon which issue was joined; so that in any event the sustaining of the demurrer, if erroneous, was without prejudice. Plea 8 fails to aver in what the alleged warning consisted, whether of danger or otherwise, and, if of danger, what danger. — Dresser’s Emp. Liability, p. 467; 29 Cyc. 525.
The defense attempted to be set up in pleas 14 and 20 was nothing more not less than a traverse of the issues tendered by the complaint. Every fact averred in these pleas could properly have been shown under the plea of not guilty, which was interposed and upon which issue was joined. The sustaining of the demurrers to each of them, if erroneous, was clearly without injury.
Affirmed.
Dowdell, Anderson, and McClellan, JJ., concur.