Porter v. Tennessee Coal, Iron & Railway Co.

SIMPSON, J. This action is brought by the appellant for the death of her intestate, Ira Porter, who came to his death by the falling in of a quantity of slate from the roof of the mine in which said intestate was working. The general charge was properly given in regard to the wanton counts of the complaint, as there is no evidence tending to show willful, wanton, or intentional misconduct on the part of the defendant. This eliminates all questions, raised on pleadings or otherwise, in regard to those counts. The demurrer to plea 3 should have been sustained. When a plea is stated in the alternative, each alternative statement must make out a defense, or the plea is-bad. The allegation that plaintiff’s intestate knew that a part of the roof was “in danger of falling,” and that, should the same fall, injury would result, is not sufficient. A person working in such a business must know that there is danger all the time; yet, unless the danger is imminent, and he acts negligently in regard thereto, he cannot be said to be contributorily negligent.—Osborne, Adm’r, v. Ala. Steel & Wire Co., 135 Ala. 571, 576, 33 South. 687; Mobile & Birmingham Railway v. Holborn, 84 Ala. 133, 137, 4 South. 146; Tutwiler Coal, Coke & Iron Co. v. Farrington, 144 Ala. 158, 161, 166, [416] 39 South. 898; Green v. Bessemer Coal, I. & L. Co., 162 Ala. 609, 50 South. 290, 292; Foley v. Pioneer M. & Mfg. Co., 144 Ala. 179, 182, 40 South. 273. See also, Simmerman v. Hills Creek Coal Co., 170 Ala. 553, 54 South. 426, as to the expression, “under or near.” For a like reason, the other alternative statement, to wit, that he had knowledge that “a part of the top or roof of said mine was loose,” is defective. It does not show what was the extent of the looseness. It may have been so slight as not to suggest danger. The latter part of the plea merely states what was likely to occur, in case the roof did fall. There ivas no error in overruling demurrers to plea 7. It was not necessary to aver that there were loose rock, etc. The gravamen of the plea is that plaintiff’s intestate had knowledge of the fact that it was obviously very dangerous to work there after the props had been blown away, without first sounding and ascertaining if there was loose rock, and, if so, quarrying it out, and that plaintiff’s intestate, with this knowledge and the knowledge that there had been no examination, went negligently into the place of danger. There was no error in overruling the demurrers to plea 8. The plea alleges that it was the duty of plaintiff’s intestate, after a shot had been made, to sound the roof; and it is hypercritical to say that it is not'alleged that plaintiff’s intestate knew that a shot had been fired. It was his duty to see and know that. There ivas no error in sustaining the objection to the question to the witness Stewart Hollins: “Does an experienced miner have knowledge of an unsecurely propped roof; can he tell when a roof is securely propped and when it is not?” It was not relevant to the issue in this case, to wit, whether the defendant had provided a [417] reasonably safe place for plaintiff’s intestate to work in. Intestate was not shown to be an experienced miner. If there was error in sustaining defendant’s objection to the question to the witness Hollins, “If this timber that was knocked out had been the kind of timber you told Mr. Green to put there, would it, or not, have been knocked out?” it was not prejudicial, as, on re-examination, the witness explained fully about the timber, and there is no evidence that he told Green to put any particular kind of timber in. The question to the same witness, as to whether, after drilling a hole, he could not shoot, if Meecham told him not to, was subsequently answered by the witness, and no error can be predicated on the sustaining of the objection to the question. It was not material to the issues in this case how many props the witness Green put under the roof after the accident.. Hence there was no reversible error in sustaining the objection to the question on that subject. If there was error in sustaining the objection to the question to the witness Tamplyn, in regard to what the timber boss should do when it was found that the rock was loose, and that the prop blew out from the shot, it was without injury, as the witness afterward explained fully what should be done. It was not material to any issue in this case as to whose duty it Avas to take a man out after he was killed. Hence there Avas no reversible error in sustaining objections to the question on that subject. There was no reversible error in the admission of the sworn, statements previously made by the witness Stewart Hollins, for the purpose, stated by the court, “of contradicting him on certain matters.” [418] There was no error in that part of the oral charge of the court marked (1), in connection with the entire instruction as set out in the bill of exceptions. It did not invade the province of the jury, but merely instructed them as to the law of an independent contractor-. There was no error in the part of the oral charge of the court marked (2). The evidence shows without conflict that the intestate was under the direction and control of Hollins; and, if Hollins was an independent contractor, it follows that intestate was not an employee of the defendant. There was no error in giving the general charge as to the wanton counts 6, 7, and 9, as there is no evidence tending to support them. There was no error in giving the charge marked 6 in the record. There was no error in giving the charge marked 7 in the record. There was no error in giving the charged marked 8 in the record. The matter referred to in said charge was set up as contributory negligence in the eighth plea. The court committed no error in giving the charge marked 9 in the record. Sections 1021 and 1034, Code of 1907. There was no error in giving charge marked 10 in the record. There was no error in giving charge marked 11 in the record. It answers to the allegations in plea 8. There was no error in the giving of charge marked 12 in the record. There was no error in the giving of charge numbered 13 in the record. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. All the Justices concur, except Dowdell, C. J., not sitting.