Vandiver v. De Bardeleben Coal Co.

SOMERVILLE, J. The evidence shows that defendant’s servant, Guttery, was intrusted with the operation of the electric coal-cutting machine, and that defendant’s mine foreman, Langley, assigned to plaintiff the duty of assisting Guttery as “scraper” ; his duty being, specifically, to throw back the slack coal from the cutting, and help to move it, and also to take up the slack *628 in the chain whenever that was necessary. As Guttery’s assistant, he was subject to Guttery’s orders. If the jury believed plaintiff’s testimony, the machine was still when, at Guttery’s request, he undertook to take up the slack in the chain, and while his hand was pressing the lever, and the “dog” was being moved from one notch to another, Guttery applied power to the machine, and the sudden jump that resulted caused the lever to escape and rebound, so as to strike and injure plaintiff. [1] On plaintiff’s statement and theory of the case, his injury was clearly the result solely of the negligence of Guttery in starting or accelerating the machine prematurely. In doing this, Guttery was not acting as a superintendent, but as an ordinary laborer and fellow servant of plaintiff. Eor his negligence in that capacity, plaintiff was not entitled to recover. K. C., etc., R. R. Co. v. Burton, 97 Ala. 240, 12 South. 88; Dantzler v. De Bardeleben Coal Co., 101 Ala. 309, 14 South. 10, 22 L. R. A. 361; Freeman v. Sloss-Sheffield S. & I. Co., 137 Ala. 481, 34 South. 612; L. & N. R. R. Co. v. Andrews, 171 Ala. 200, 54 South. 553; Linderman v. Tenn., etc., Co., 177 Ala. 378, 58 South. 900. The only contradiction of plaintiff’s testimony is found in the testimony of Guttery, who denies that he gave any instruction to plaintiff on this occasion, and who says that the machine had not stopped and become stationary just prior to plaintiff’s injury. And Guttery significantly says that— “Plaintiff laid down his shovel and went back, .and I reversed the machine to pull back, and I heard him holler, and I went to him.” But, whatever may have been the conclusion of the jury as to these contradictions, the only possible inference from the entire testimony was that Guttery’s negligent operation of the machine was the sole proximate cause of plaintiff’s injury, either by reason of the sudden starting of the machine while it was stationary, or by reason •of the sudden reversal of the machine while it was moving, and while plaintiff was operating the lever. ' [2] In view of this testimony, and these alternative inferences which are exclusive of .all others, a recovery could not be predicated on Langley’s failure to warn plaintiff of the dangers of his work behind the machine, nor on Guttery’s alleged negligence in ordering plaintiff to take up the slack while the machine was in motion; for it is clear that neither of these things was the proximate cause of plaintiff’s mishap. The trial court was therefore justified in ignoring the issues made by counts 5 and 6, and in giving for defendant the general af-' firmative charge'on the whole case. [3] For the same reason, if there was error in sustaining the demurrer'to count 3, it was error without injury, since, on plaintiff’s own testimony, he understood how to take out the slack, and his injury was in no possible sense attributable to this lack of knowledge or skill in that regard. It results that the assignments of error are without merit, and the judgment must be affirmed. Affirmed. ANDERSON, O. X, and MAYFIELD and THOMAS, JX, concur.