New Connellsville C. &. C. Co. v. Kilgore

SIMPSON, J. This is an action by the appellee against the appellant for injuries received by the plaintiff while working in the coal mine of the plaintiff. There was a certain “skidway” extending from the mouth to the bottom of the air. way in said mine, said skidway having three-cornered pieces of timber bolted to crossties, thus forming a groove or trough, in which, a large bucket about 30 inches in diameter and 4 feet deep, which slid on its side in said trough, was raised and lowered by a rope attached to a windlass or drum in the engine room at the mouth of the mine. By the side of this skidway was a wire rope, connected with a [653] bell in the engine room, for the purpose of signaling to the engineer to raise and lower the bucket. There was also a pipe through which communication might be had with the engineer. The plaintiff was working at' a “crosscut” about 45 or 50 feet from the bottom of the air shaft, and sent a man to the bottom for a piece of timber. The man got a piece of green pine timber eight or nine feet long and six inches thick, placed it in the bucket, without fastening, and called to plaintiff to “signal the engineer to take the slack out of the rope.” Plaintiff gave the signal to hoist the bucket, which was obeyed, and, as he was giving or attempting to give the signal to stop the bucket, it was thrown from the skid-way, striking the plaintiff, and causing the injury complained of. The case was tried on counts three, four, five, and six of the complaint. The counts of the complaint were properly held to be not subject to the demurrer, on the ground that they do not show that the plaintiff was engaged in and about the duties of his employment at the time of the injury. — Sloss-Sheffield S. & I. Co. v. Chamblee, 48 South. 664. There was no error in overruling the demurrer to the fifth count of the complaint on the ground that the signal rope was not a part of the ways, works, machinery, or plant. This rope had a permanent place in the plant, and was not like the rope in the case of Southern Railway Co. v. Moore, 128 Ala. 434, 29 South. 659. — Sloss-Sheffield S. & I. Co. v. Mobley, 139 Ala. 425, 36 South. 181; Going v. Alabama Steel & Wire Co., 141 Ala. 537, 548, 37 South. 784. The court erred in sustaining the demurrer to plea 5 While it is true that this court has held that a plea of contributory negligence (unlike a complaint alleging negligence) is not sufficient if it merely states a conclusion of law, but must allege the facts constituting the [654] negligence (Tenn. C.,I. & R. R. Co. v. Herndon, Adm’r., 100 Ala. 451, 14 South. 287; L. & N. R. R. Co. v. Markee, Adm’r., 103 Ala. 160, 15 South. 511, 49 Am. St. Rep. 21; Western Railway of Alabama v. Russell, Adm’r., 144 Ala. 144, 153, 39 South. 311, 113 Am. St. Rep. 24; Southern Railway Co. v. Shelton, Adm’r., 136 Ala 191, 208, 34 South. 194), yet said fifth plea does allege the facts of the particular act of negligence, and the knowledge of the danger. It was consequently sufficient. — A. G. S. R. R. Co. v. Roach, 110 Ala. 266, 270, 20 South. 132. It was error to sustain the demurrers to pleas 7, 9, and 10. ■ They are not subject to the causes assigned. Plea C alleges assumption of risk, but the facts alleged relate to contributory negligence, and the plea is not sufficient. Hence there was no error in sustaining the demurrer to the same. — Southern Railway Co. v. McGowan, 149 Ala. 440, 43 South. 378. Plea D does not allege that the supposed negligence contributed proximately to the injury. Hence there was no error in sustaining demurrers to same. Additional plea 2 (to- the third count) and plea 7 (to the third count) are pleas of assumption of risks, and not of contributory negligence. The demurrers to said pleas were properly sustained. — 1 Labatt’s Master & Servant, § 305, and note “s”; Going v. Alabama Steel & Wire Co., 141 Ala. 538, 542, 550, 37 South. 784. Additional plea 5 (to the third count) is not subject to the causes of demurrer assigned, and the court erred in sustaining the demurrer to it. The court erred in sustaining the demurrer to plea 4 (to the third count). If the injury occurred as the proximate result of the plaintiff’s own negligence in disobeying instructions as alleged in the plea, he cannot recover. [655] While additional pleas 1 and 2 (to the fifth count) are not sufficient, yet they are not subject to the causes of demurrer assigned, and there was error in sustaining-said demurrer. Additional plea 3 (to the fifth count) is no answer to the count, and the demurrer was properly sustained to the same. There was no error in sustaining the demurrer to plea A. The description of the skidway, bucket, and wire shows that they are a part of the plant. — Going v. Alabama Steel & Wire Co., supra. Charges 18 and 23, requested by the defendant, were properly refused. The court cannot be required to give a charge that there is no evidence of a particular fact. There was no error in the refusal to give charge D. Charge 26 was properly refused. Charge 31 was also properly refused. There was no proof as to how long before the accident the plaintiff had discovered the defect in the bucket, and the question of reasonable time was for the jury. For the same reason there was no error in refusing to give charge G, nor was there any error in refusing to give charge H. It was for the jury to consider whether the rope was defective, and whether-the accident was due to the defect. The plaintiff testified that he had no trouble with it till that night. It was also for the jury to consider whether there was a defect in the skidway, and' whether said defect caused the accident. Consequently there was no error in the refusal to give charge E. As to the question to the witness Costello about the expression of pain at the time of the accident, besides the fact that it was a part of the res gestae of the accident, the witness had already testified in the same words as were used in answer to this question, to wit, “he said he was hurt.” There was no error in overruling the ob [656] jection to the question to the witness Costello as to whether it had been the custom.to give signals to the engineer from the point where Kilgore was hurt. The witness had testified before without objection that “it had been the custom to give signals to the engineer anywhere along the line.” The questions propounded to the witness Costello as to whether the bucket was more liable to jump out when going fast, whether it was dangerous to stand by the skidway when the bucket was traveling up, and whether the bucket running at such a speed would be liable to jump out related to matters of common observation, and there was no error in sustaining the objections to the questions. The court calls attention to the fact that this record is in great confusion, owing to the unnecessary number of pleas, etc., and to the fact that there are several sets of pleas and replications bearing the same numbers. ■The judgment of the court is reversed and the cause is remanded. Reversed and remanded. Anderson, Denson, and Mayfield, JJ., concur.