Sloss Iron & Steele Co. v. Knowles

DOWDELL, J. The plaintiff sues for damages alleged to have been sustained on account of personal injuries received by him caused by rock falling upon him from the roof of an iron ore mine while engaged at work in said mine, which was the property of the defendant corporation, the Sloss Iron & Steel Co. The complaint contained twelve counts. Upon eleven of these the court gave the general charge in favor of the defendant, and upon the remaining count, which was the third, the jury gave a verdict for the plaintiff, and from the judgment rendered on this verdict the present appeal is prosecuted. The third count of the complaint, which is the one before us for consideration, is based upon the alleged negligence in the performance of a duty growing out of the relation of the owner of the property to one who is by invitatión of such owner assisting in developing the same, and while so engaged receives personal injuries. . . . • It is not pretended under this count that the plaintiff was the servant or employe of defendant at the [415] time of tbe- alleged injury for wliicli damages are here claimed. This count avers that the defendant ivas operating an ore mine and was engaged in opening or extending a subterranean entry in said mine; that plaintiff, by invitation of defendant, was assisting in opening or extending said entry, and while plaintiff was so engaged in said work he received his alleged injuries, caused 'by rock falling upon him. One contention of appellant, that the plaintiff was nothing more than a licensee, we need not -consider, as under our view of the case, on the plaintiff’s theory of one injured while engaged at work on mere invitation of the owner of the premises, on the-undisputed evidence in the case he is not entitled to a • recovery. The work at which plaintiff was engaged when injured, that of extending an entry in an iron ore mine, being at the time 400 feet subterranean, was one of hazard and of danger, and in its nature -attended with risks that human foresight and skill cannot always guard against. That the plaintiff, in doing the work in and about which he was engaged, voluntarily assumed the risks incident to -said work, as a proposition of law -might be said to lie axiomatic. The rule applied where the relation of master and servant — employer and employe— exists is that the latter assumes the risks incident to his employment, and certainly the plaintiff here can stand on no higher ground. In Linton Coal Co. v. Pearson, 43 N. E. Rep. (Ind.), 652, where the question of the risks assumed by one working in a mine is discussed, the court said: “And when it is said that the servant assumes the risks of daffger of which he has knowledge, it is not meant that he assumes no risks except from dangers of which he has actual knowledge or which are patent, for he does assume the risk of latent as well as patent dangers which are a natural incident to the service and which it is not the duty of the master to guard against; that is, dangers, whether visible -or invisible, known or unkn-OAvn, at the time of the employment, if they are -such as naturally arise from the nature of the work to be performed, he assumes. It is for this reason that he is required to exercise reasonable care to ascertain and know the dangers which may exist, or [416] even arise suddenly and Confront him during his service.” In Bailey’s Master ■ Liability, pages 162, 163, 164, it is said: “He must use reasonable care in examining the surroundings to observe and take such knowledge of dangers as can be attained by observation. In performing the duties of his place he is bound to take notice of the ordinary operation of familiar laws and to govern himself accordingly. If he fail to do so the risk • is his own He is- bound to use his eyes and. see that which is apparent to any person using his eyes, and-if the defect is obvious and suggestive of danger, knowledge on the part of the servant will be presumed, as well as when the dangers are of common knowledge.” Notwithstanding the plaintiff’s statement of liis ignorance of the danger and liability of the roof to fall in, his further examination showed that he was not without experience in mining ore, and the evidence further showed that he knew props were necessary and were used to support the roof and prevent. the same from falling in. He had assisted in putting in these props, which were usually in an entry the width of the one which he was assisting in extending set up in three rows and about three feet apart in a line running with the mine as the entry was extended; that on the evening before the accident occurred, after a shot or blast had been made with dynamite in the ore in the face of the entry and preparatory to a further - extension of the entry, he assisted in putting in the two “miner’s props,” and in fixing a place for the “tramway prop,” which latter it was the duty of the company to put in when notified. On the following morning, with the knowledge of the conditions and surroundings, and that the tramway prop had not been' put in, he began to break ore which had been broken down ’by the blast made the evening before, and while thus engaged, at a point under the unsupported roof and where he had assisted in fixing a place for the third prop — the tramway prop —to be set, and which he knew to be necessary, lie was injured by falling rock from the unsupported roof. Under these facts, whether considered with reference to the doctrine of assumed risks, or contributory negli [417] gence, we think it clear that the plaintiff was not entitled to recover. The case here presented is not only one where a person of ordinary intelligence would be presumed to know the dangers and hazards incident to the employment, and one where an ordinarily prudent man would exercise reasonable care to guard against the same, hut the facts show actual knowledge on the part of the plaintiff of existing conditions at the point where he was hurt that would have suggested to a man of ordinary intelligence the perils of the situation, and such as should have been avoided in the exercise of ordinary care and prudence. Unquestionably his knowledge of conditions and surroundings at the time of the accident was equal to, if not better than, that of the defendant, and in this respect it becomes unimportant as to whether the defendant had been notified to put in the ' tramway prop or not, or whether it had negligently failed to do so after notice. The case of O’Brien v. Tatum, 84 Ala. 186, where the plaintiff was by invitation on the premises of the defendant and was injured by falling into the pit of an open elevator which was unguarded, is conclusive of this case and against the right of plaintiff’s action. There it was said by this court: “If from the evidence the jury should find that the defendant was not negligent in leaving one side of the opening exposed, or, if negligent in this regard, that plaintiff had knowledge of the existence of the elevator, or, if ignorant of its existence, he was notified of the danger in time to avoid the injury, and did not use ordinary care, in either event he was not entitled to recover.” Here the evidence showed a knowledge of existing conditions that would suggest to an ordinarily prudent man the danger of the ■ falling rock, and moreover, the evidence sIioavs that lie had been cautioned as to the necessity of having in the props. We are of the opinion that the general charge requested by the defendant should have been given, and that the court erred in its refusal. The recitals in the record as to the rulings on demurrer, as has been repeatedly held by this court, are insufficient to show any judgment by the court on the demurrers, and the assignments of error relating there [418] to will not, therefore, be Considered. We deem it unnecessary to consider other assignments after what we have said above in regard to the evidence and the law governing the case. Reversed and remanded.