Pioneer Mining & Mfg. Co. v. Smith

ANDERSON, J. The-' appellant’s counsel insists upon a reversal of this cause solely upon the refusal of the trial court to give the general charge requested by the defendant. The complaint was predicated upon subdivision 1 of the employer’s liability act (section 1749 of the Code of 1896). There was proof of the defect complained of, that it was known to the master, that the master negligently failed to remedy the same; and that said negligence was the proximate ■ cause of the intestate’s death; and the defendant was not entitled to the' general charge under the general issue. • Idea 3 was one of contributory negligence, ascribing the intestate’s death to his negligent failure to prop-the roof, which it was a part of his duty to do. 'There was evidence from which the jury could well infer that it was the duty of -the defendant, and not the intestate, [359] to remove, prop, or make safe the point in the mine at which the rock fell; and this plea was, therefore, not proven beyond dispute. Plea A sets up an assumption of risk by the intestate, and presents the question most seriously insisted upon by counsel as a basis for the general charge in favor of the defendant. There can be no doubt as to the .soundness of the proposition that, where the servant continues to work after discovering the defect or danger or that it is patent and open to ordinary observation, he assumes the risk of consequences and continues to work at his own peril.—Sloss Iron Co. v. Knowles, 129 Ala. 410, 30 South. 584. But the rule is also, as stated by Mr. Bailey in his work on Personal Injuries (section 899) : “Master and servant do not stand upon an equal footing, even when they have equal knowledge of the danger. The position of the - servant is one of subordination and obedience to the master, and he has the right to rely upon the superior skill of the master, and is not entirely free to act upon his own suspicions of danger. If a servant, being ordered into a position, obeys and is injured, he Avill not be held to he guilty of contributory negligence, unless the danger is so glaring that a reasonably prudent person would not have entered into it.” And our decisions are in line Avith this rule.—Southern R. R. v. Guyton, 122 Ala. 241, 25 South. 34; Southern Ry. Co. v. Shields, 121 Ala. 460, 25 South. 11, 77 Am. St. Rep. 66; Southern R. R. v. Howell, 135 Ala. 648, 34 South. 6. It may he true that the intestate and other miners kneAV of the dangerous condition of the roclr up to the time the fact Avas reported to Hillhouse, and up to the-time defendant attempted to remedy it; but the evidence on the part of the plaintiff tended to sIioav that the intestate and others had been assured by Hillhouse and Marcus that the dangerous portion of the rock had been removed and that the point from Avliich the rock fell was no longer dangerous. There is no proof that the intestate knew of the dangerous condition of the rock after these assurances. True, the witness Jones testified that he considered it dangerous after the re [360] moval of a portion thereof, and that the intestate worked nearer to -it than he did. This may all be true, yet it does not show beyond dispute that the intestate knew of the danger, or that the defect was open and glaring to ordinary observation after the attempt to remedy the same. Jones may have made a close test or examination, which the intestate may have failed to do, owing to the assurances given him as to its safety, by Hillhouse and Marcus; and his said failure to examine the rock cannot be said, as matter of law, to be negligence, and it was at least a question for the jury.—Burgess v. Davis Co., 165 Mass. 71, 42 N. E. 501; Haas v. Balch, 56 Fed. 984, 6 C. C. A. 201; Lake Superior Co. v. Erichson, 29 Mich. 492, 33 Am. Rep. 423; Labatt ón Master and Servant, 453. It cannot be said that the opportunities of the master and servant for discovering the defect at or just before the falling of the rock were the same. It is true that under ordinary circumstances the opportunity of the intestate ’was as good or better than that of his superiors; but at this particular time an examination had been made by the master, and an attempt was made to remedy the defect, and the intestate had some right to rely upon the assurances that the clanger no longer existed, and the trial court properly submitted the case ■.to the jury under all the pleas, and properly refused the general charge requested by the defendant. The judgment of the city court is affirmed. Affirmed. Tyson, C. J., and Dowdell and McClellan, JJ.,. ■concur.