Merriweather v. Sayre Mining & Mfg. Co.

McCLELLAN, J.- The demurrers to counts 13, 14 and 15 of the ¡complaint as 'amended 'were properly sustained for three reasons, pretermitting others asserted : To count 13, because the duty to afford the servant a reasonably safe place in which to work is not unqualified, as is alleged in the count, but that duty is met when reasonable care and skill is exercised that such reasonably safe place may be afforded. To counts 14 and 15, because the negligence ascribed is not averred to have been the proximate cause of the injury complained of, nor are the facts and circumstances so pleaded as to lead, with requisite certainty, to that conclusion therefrom. Plea 2 as amended is not subject to the demurrers interposed to it. The injury complained of was the result of the falling of the roof in a mine. This plea asserts that the intestate was guilty of negligence, proximately contributing to his injury, in that intestate negligently caused or allowed himself to be under or in dangerous proximity to a part of the top or roof of said mine which was in danger of falling, of which — 452 — fact intestate had knowledge, or which fact it was his duty to ascertain, and which he negligently failed to ascertain, or which fact was obvious to intestate.” There can be no serious contention that when a servant places himself in a position of peril arising from the neglect or negligence of the master or the master’s representative from an agency the danger of injury from which is obvious or known to him,, and he is injured in consequence, he is guilty of contributory negligence, barring a recovery therefor. The obviousness of the danger in this case, or knowledge thereof, are expressly alleged in the amended plea. The remaining alternatives, viz., that it was intestate’s duty to ascertain the fact and that he negligently failed to ascertain it, are susceptible of no other interpretation than it in plain terms avows. If such was his duty, and he negligently failed to observe it, and such failure proximately contributed to his injury, we know of no legal principle denying to the master exemption from the consequence of the injury therefrom, notwithstanding negligence imputable to the master for the dangerous condition’s existence. As indicated by our views, counsel for appellant is incorrect in his construction of the plea, as being of the kind condemned in Osborne v. Ala. Steel & Wire Co., 135 Ala. 571, 33 South. 687. There the pleas were silent in averment of duty on the servant to ascertain the condition, in respect of safety, of the place whereat he was when injured. Here that averment is present and explicit. The demurrer to the fourth plea should have been sustained. The alternative averment of knowledge “or notice” renders it bad, under the authority of Osborne v. Ala. S. & W. Co., supra. Plea 6, as amended, is in the language of the liability act, and was hence not subject to the demurrers. — 453 — Plea 7, as amended, met the conditions of the rule for assumption of risk by a continuance by intestate in the service an unreasonable time after he knew of and appreciated the danger in the premises. — Osborne’s Case, supra. Plea 8 is a good plea of contributory negligence, averring, as it does, knowledge of the danger and intestate’s disregard of the hazard of the event, which happening, the plea alleges, proximately contributed to his injury. The replications to which demurrers were sustained were addressed to pleas of contributory negligence and assumption of risk; and the demurrers, taking the point that the assurance by defendant’s representative, asserted in the replications, of repair or remedy of the defective condition, were inappropriate as reply to pleas of contributory negligence, were well sustained. The plaintiff; moved, upon several grounds, the court to require W. I. Grubb, the attorney appearing for defendant, to produce or prove his authority to do' so.— Code 1896, § 594; Code 1907, § 2990. The bill of exceptions merely shows that the court overruled the motion and that the plaintiff excepted. The bill does not purport to set out all the evidence, and to sustain the action of the court in the premises it must be presumed that the court was well invited to rule as it did. The drawing of the mine on a blackboard does not appear to have been offered in evidence; and hence the refusal of the court to exclude it on motion of plaintiff was proper. There was no error in the court’s declining to exclude the testimony of C. J. Salors as a supposition. The witness said the matter inquired about related to one of two of three parties, and he could not designate the party of this number. One of the controverted matters on — 454 — the trial was the experience intestate had had in mining. Rosser testified that intestate told him lie had worked at another mine. The motion to exclude this testimony as hearsay was properly overruled, since it was a statement by intestate, who was about 18 years of age, in opposition to interest, upon trial of an action for his death, and in which his experience as a miner was treated as an issue. The plaintiff’s objection to the question to the witness Brown was that it was leading, and its overruling by the court was the proper exercise of a discretion reposed, and is not reviewable here. Charge 1, requested by plaintiff, was well refused, since the expression “otherwise control,” employed therein, might very reasonably embrace authority not necessarily inhering in the relation of master and servant. Charge 3, requested by the plaintiff, should have been given. — Reiter Mfg. Co. v. Hamlin, 144 Ala. 192, 197, 40 South. 280 (charge 2). Charge 9, requested by plaintiff, should have been given. The definition of what will constitute the relation of master and servant is comprehensive, as therein stated, and under its terms nothing, whether concerned the general control, or more minute direction of the details, of the service, is left for exercise by any authority other thau the alleged master or his representatives. —Lookout Iron Co. v. Lea, 144 Ala. 169, 39 South. 1017; Drennen v. Smith, 115 Ala. 397, 22 South 442. There was testimony presented tending to show the state of facts hypothesized in charge 9. Charge 11, requested by plaintiff, should have been given. — A. G. S. R. R. v. Frazier, 93 Ala. 45, 9 South. 303, 30 Am. St. Rep. 28. It was not abstract, and the testimony referred to involved a material inquiry. — 455 — Charge 4, given at the request of the defendant, should have been refused, because, first, it pretermits in hypothesis the breach of the duty asserted to have lain upon intestate to see" whether the roof of the place was safe and pull or shoot it down if unsafe; second, it is silent in respect of essential condition to bar a recovery because of contributory negligence, in that it is not stated that such breach of duty proximately contributed to the injury in question; third, it ignored count 4, which charged wantonness. My associates prefer to rest their criticism of this charge upon the first numbered ground alone. Charge 6, given at the request of defendant, cannot he made the predicate for error. While in the employment of rather general terms in referring to his (Kirby’s) men, it might have been misleading, and' properly refusable, or, being given, necessitate an explanatory instruction from the adversary, it seems, aside from the stated criticism, to declare the test, approved by this court, for determining vel non the existence of the relation of master and servant as controlling liability for injuries suffered. That test was thus defined in R. & D. R. R. Co. v. Chasteen, 88 Ala. 593, 594, 7 South. 94, 96: “Whether he renders service in the course of an independent occupation, representing the will of his employer only as to the result of the work, and not as to the means by which it is accomplished.” — Or, as set forth in Harris v. McNamara, 97 Ala. 181, 12 South. 103, that the defendant had no control over the means or agencies by which the result was to be produced, then, and if so, the relation was not that of master and servant. — Words & Phrases, p. 3542 et seq.; Dallas Co. v. Townes, 148 Ala. 146, 41 South. 988; 26 Cyc. p. 970. If Kirby was upon a yardage basis of mining, an independent contractor as regards the de — 456 — fendant, and the intestate was in Kirhy’s service as snch independent contractor, liability for his injury received while in such service did not attach to defendant.— Harris v. McNamara, supra. Charge 9, given at the request of the defendant, is subject to the criticism stated against charge 4, given for the defendant. The part of the oral charge of the court, assigned as error, was erroneous in that, in defining the contention of plaintiff, it was said by the court that that contention embraced a willful infliction of the injury. Count 4 ascribed the injury to wanton and gross negligence, not willfulness. — B. R. & E. Co. v. Bowers, 110 Ala. 328, 20 South. 345. The effect of the oral charge, in the respect referred to, was to impose upon the plaintiff a burden not assumed in his pleadings. We have treated every error assigned; and, for the errors indicated, the judgment must be reversed, and the cause remanded. We feel compelled to suggest that, if another trial is had, the pleading should be materially diminished in volume. Reversed and remanded. Dowdell, C. J., and Anderson and Sayre, JJ., concur.