Little Cahaba Coal Co. v. Gilbert

DOWDELL, C. J. This is an action under the Employer’s Liability Act (Code 1907, §§ 3910-3913) for personal injuries received by the plaintiff from the falling upon him of rock from the roof of a mine operated by the defendant. The trial was had upon the first — 520 — and third counts of the complaint, the second and fourth having been charged ont by the court; and, demurrers to said first and third counts having been overruled, the defendant pleaded in short by consent the general issue, with leave to give in evidence any special matter of defense that might be specially pleaded, and with leave to the plaintiff to put in evidence any special matter that might be made the subject of special replication. There were verdict and judgment for the plaintiff, and the defendant prosecutes this appeal. The first assignment of error is based on the court’s overruling the demurrer to count one as amended. This count is framed under the Employer’s Liability Act (section 3910, subd. 1, of the Code of 1907). It avers that defendant was operating a certain coal mine, and that while plaintiff was in the service or employment of the defendant, and while he was in said mine engaged in or about the business of the defendant in said service or employment, a part of the roof or top of said mine fell upon or against him, proximately causing the injuries for which damages are claimed. Thus far the averments of this count are adopted by the third count. Then the first count proceeds: “Plaintiff avers that said part of said roof or top fell upon or against him, as aforesaid, and he suffered, said injuries and damage, by reason and as a proximate consequence of a defect in the condition of the ways, works, machinery, or plant used in or connected with the said business of defendant, which defect arose from or had not been discovered or remedied owing to the negligence of the defendant, or of some person in the service or employment of defendant intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition, viz., said part of said roof or top which fell upon or against him was defective.” — 521 — Appellant contends that this count is demurrable in that it seeks to fix negligence, per se, upon the defendant, from the mere existence of a defect in the roof, citing Merriweather v. Sayre, 161 Ala. 441, 49 South. 916. This contention is based upon an incorrect premise. It overlooks the averment that the defect arose from or had not been discovered or remedied owing to the negligence of the defendant, or of some person in its employ and intrusted by it with the duty of seeing that the ways, works, etc., were in a proper condition. The count in the Merriweather Case, supra, does not follow the statutory language, and is evidently based upon the common-law duty of the master to exercise due care to have the premises reasonably safe for its servants to work in, and that duty is met when reasonable care and skill are exercised that such reasonably safe place may be afforded. Hence it was held in that sort of case that the averment of a mere failure to furnish a reasonably safe place in which to work was insufficient. Here the averment is that the defect arose from or had not been discovered or remedied by reason of negligence, for which, under the language of the statute, the master is responsible; and therefore it cannot be said that this count would charge the master with liability solely for the existence of a defect, without more. The demurrer on this ground is not well taken. — Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 South. 455; A. G. S. R. R. Co. v. Davis, 119 Ala. 572, 24 South. 862. It is further contended that this count does not show that the plaintiff was engaged in the duties of his employment at the time he was injured, yet the count avers that at the time of the injury plaintiff was in the employment of defendant and was in the mine engaged in defendant’s business in such employment. — 522 — Another ground of demurrer to the first count is that the defect alleged is not sufficiently described. It will be noted that the first count avers that the injury was caused by a part of the roof or top of the mine falling on the plaintiff, that this was the proximate consequence of the defect in the ways, works, etc., arising from negligence, and that this defect ivas in that part of the roof which fell upon plaintiff, or, rather, that that part of such roof was defective. True it is, as has often been held by this court, that “a complaint declaring on negligence under the Employer’s Liability Act should in respect of certainty conform to rules which under our system apply to pleadings generally. Those rules permit the averment of conclusions, but conclusions when employed must ordinarily be accompanied with averments of fact whereon issues can be understood, joined, and tried.” — L. & N. R. R. Co. v. Jones, 130 Ala. 470, 30 South. 590. In that case the following averment was held sufficient: “Caused or allowed the attempt to get said car upon said rails without proper appliances.” In the case of Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 South. 445, the defect in the ways, works, etc., was held to have been sufficiently pointed out by the words: “The said railway from which the said engine was derailed as aforesaid at or near the point of derailment Avas defective.” It is also contended that the above count is defective in that it fails to aver that it was defendant’s duty ,to prop or secure the roof or to have it safe, and a breach of that duty. In reply to this, it is only necessary to call attention to the fact that the Employer’s Liability Act provides that: “When a personal injury is received by a servant or employee in the service or business of the master or employer, the master or employer is liable to answer in damges to such servant or — 523 — employee, as if he were a stranger, and not engaged in such service or employment, in the cases folloAving: When the injury is caused by any defect in the condition of the ways, works, machinery, or plant, connected with,' or used in the business of the master or employer, ' * * Avhich defect arose from or had not been discovered or remedied owing to the negligence of the master,” etc. The duty of the master to protect the servant while engaged in his employment from injury by reason of defects in the ways, Avorks, etc., arising from negligence Avith Avhich the master is chargeable, is a duty growing out of the relation of master and employee under this act, and, when the averments of a count bring it within the statute, it is not necessary to add to the averments required by the statute that it was the defendant’s duty to prevent the defect Avhich is averred to have arisen from negligence, of the sort for Avhich the master is made liable by the statute. As was said in the case of Republic Iron & Steel Co. v. Williams, 168 Ala. 618, 53 South. 78: “Every complaint for negligence must shoAv a relation betAveen the parties out óf Avhich arises a duty owing from the defendant to the plaintiff. Extremest advocates of the modern practice of general and informal allegation in complaints have not yet denied the necessity of averring such a relation. That much shoAvn, Ave have a long line of cases, running back to Leach v. Bush, 57 Ala. 145, which hold that an averment that the defendant negligently failed to do and perform the act imposed by duty, sufficiently states a cause of complaint. * * * Complaints in tort for negligence are much dependent upon the use of the word ‘negligently.’ Without regard to the policy of brevity, it would be difficult in many cases to draw a complaint Avithout the use of this word, and where, from all the — 524 — facts that could be stated, it would remain for the jury to draw the inference of negligence vel non, the pleader must of necessity draw the inference in stating his case. * * We do not for a moment suppose the word to be essential in every case, nor that it may not be ineffectively or inaptly used, but plainly it covers a multitude of omissions and is exceedingly useful.” The case of Horan v. Gray & Dudley, 159 Ala. 159, 48 South. 1029, which was based upon a failure to warn of danger, is not in conflict with our ruling here. Under the principles laid down in our former decisions, the first count was not subject to the demurrer interposed. The third count adopts the first part of count 1 and then charges: “Plaintiff avers that said part of said roof or top fell upon or against him, as aforesaid, and he suffered said injuries and damage by reason and as a proximate consequence of the negligence of a person in the service or employment of defendant, who had superintendence intrusted to him, whilst in the exercise of such superintendence, viz., one McGinnis, in the exercise of such superintendence, negligently caused or allowed said part of said roof or top to fall upon or against plaintiff on the said occasion.” This count is framed under the second subdivision of the Employer’s Liability Act. It is contended that this count is demurrable for that it fails to show a duty on the part of the defendant or its superintendent to secure the roof from falling on plaintiff, and a breach of that duty; or that said superintendent had knowledge of the probable danger of the roof’s falling on plaintiff; or that he could have ascertained that fact by the exercise of due care. From what has been observed in regard to the demurrers to the first count, and also upon the authority of Robinson Mining Co. v. Tolbert, 132 Ala. 462, 31 South. 519, it appears that the court — 525 — below committed no error in overruling the demurrer to the third count of the complaint. In the case last cited, it was said: “The averment of negligence in the third count is That plaintiff received said injuries and suffered said damage as aforesaid, by reason and as a proximate consequence of the negligence of a person, to wit, one Frierson, in the service or employment of defendant, and intrusted by defendant with superintendence, whilst in the exercise of such superintendence, to wit, said person negligently failed to warn or notify plaintiff of the presence of the large quantity of a high explosive, at or near the place where defendant was at work as aforesaid, though there was present at or near the said place at which plaintiff was at work a large quantity of a high explosive, which exploded as aforesaid.’ The demurrer to this count was that ‘it is not alleged that the said Frierson knew of the presence of a large quantity of a high explosive at or near the place of work of the plaintiff at the time of the injury.’ The plaintiff was not bound to make such allegation in his complaint. It was only necessary to allege in the manner done the negligence of defendant, and prove that defendant knew, or was in a position by the exercise of reasonably prudent care to know, of the presence of the high explosive at or near the place of the injury”— citing L. & N. R. R. Co. v. Coulton, 86 Ala. 129, 5 South. 158; L. & N. R. R. Co. v. Allen, 78 Ala. 494. It is next contended that the court, below erred in giving the following written charge at the request of plaintiff: “If the jury is reasonably satisfied from the evidence that either the first or third count of the complaint is true, then the plaintiff’s case is made out. In support of this contention, appellant cites the cases of Frierson v. Frazier, 112 Ala. 232, 37 South. 825, and Ala. Steel & Wire Co. v. Thompson, 166 Ala. 160, 52 — 526 — South. 75. The alleged vice of this charge is that it ignores the defense of contributory negligence, directing a-verdict for the .plaintiff if he proves the negligence alleged in the two counts, or either of them, without regard to his contributory negligence, if any; and that this vice is not cured by the giving of the numerous special charges requested by the defendant submitting the question of contributory negligence to the jury in every possible phase presented by the testimony. The charge which was held bad in the case of Frierson v. Frasier, supra, was as follows: “If from the evidence you are reasonably satisfied that the defendant was guilty of negligence, and such negligence was the direct cause of the injuries complained of your verdict should be for the plaintiff.” It will be noted that this charge directs a verdict on the proof of negligence without more, while the charge in the case at bar merely states that if the plaintiff proves the two counts which were left in by the court, or either of them, his case was made out. It does not direct a verdict; it does serve the purpose of informing the jury that in order to make out a case it was not incumbent upon plaintiff to prove every count of his complaint. While the form of this charge is not to be commended, on account of its possible tendency to mislead the jury in some eases, we are assured that, with the numerous charges shown by this record as given, submitting the question of contributory negligence as a defense though the plaintiff should prove the negligence averred in his complaint, the jury in this case could not have been mislead. The charge which was condemned in the case of Ala. Steel & Wire Co. v. Thompson, supra, read as follows: “If the evidence reasonably satisfies the jury that the material averments of any one count of the complaint are true, they will find a verdict for the plaintiff.” This charge — 527 — also directs the verdict, and was properly held bad, for the same reasons as in the Frierson Case. Strictly considered, from a technical standpoint, the charge we are considering states a correct proposition, and would be understood by a lawyer to mean that, if the plaintiff proves either of certain counts, he has made out his case; that is, that he has gone as far as is necessary in order to put upon the defendant the burden of proving some one of its pleas. If it could mislead a jury of laymen, the defendant could protect itself by asking an explanatory charge. Manifestly, there was no reversible error in the giving of this charge, in this case, though it might properly have been refused on account of its possibility of misleading. Another of the assignments of error is based upon the giving by the court of the following charge: “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.’’ This charge is part of a statement in Bailey on Personal Injuries, quoted in full and approved by this court in Pioneer Mining & Mfg. Co. v. Smith, 150 Ala. 359, 43 South. 561, as being in line with the doctrines laid down by this court in Southern R. R. Co. v. Guyton, 122 Ala. 231, 25 South. 34; So. Ry. Co. v. Shields, 121 Ala. 460, 25 South. 811, 7 Am. St. Rep. 66; So. Ry. Co. v. Howell, 135 Ala. 648, 34 South. 6. The concluding part of this quotation, omitted from the charge as requested, is: “If a servant, being ordered into a position, obeys and is injured, he will not be held to be guilty of contributory negligence, unless the danger is so' glaring that a reasonably prudent person would — 528 — not have entered into it.” The proposition announced in the charge as given, while broad and general in its statement, and, with the concluding sentence of the original omitted, having some tendency to mislead, yet it cannot be affirmed to constitute bad law. Nor is the charge abstract as applied to some of the testimony for the plaintiff. When considered in connection with charges 12, 22, 23, and 24, given at the request of the defendant, the jury could hardly have been misled into the belief that under the law the plaintiff had an unqualified right to rely upon the superior skill or assurance of his employer as to his own safety, even if it should be conceded that the charge objected to had a tendency in that direction. Charge 22, given for defendant, reads: “The court charges the jury that even though the mine foreman may have told the plaintiff to place the cross-collars 10 feet apart, and the plaintiff relied on such assurance, yet, if the jury believe from the evidence that the plaintiff thereafter was warned, by falling rock or otherwise, that the roof was dangerous at the place where he was injured, and remained thereat or thereunder or dangerously near an obviously dangerous place for an unreasonable length of time after such warning, then you cannot find for the plaintiff under any count of the complaint.” There were several other charges given along this line, going to show that the law required the plaintiff to guard against obvious dangers, etc. No reversible error was committed in the giving of the charge requested by plaintiff. — L. & N. R. R. Go. v. Handley, 174 Ala. 593, 56 South. 539. Charge C was- properly refused to the defendant, because it ignores the question of the negligence vel non of the plaintiff’s conduct hypothesized in the charge, — 529 — and also singles out and tends to give undue prominence to a part of the evidence. Furthermore, the proposition embraced in this charge is substantially covered by other charges given at defendant’s request. Nor was there any reversible error in refusing to give charge “E,” which was to the effect that “plaintiff is presumed to know of the result of natural laws and dangers and that unsupported rocks are liable to fall.” There is a misleading tendency in this charge. From it the jury might well have understood the court to charge them that as a matter of law the plaintiff was presumed to know that the rock which fell upon him was liable to so fall, when, under the evidence, this was a question for the jury; and, moreover, the testimony for the plaintiff tended to show that that part of the roof which fell was supported in accordance with the orders of the defendant’s foreman, and that the supports were by such orders placed so far apart as to render the roof unsafe, and that by reason of this the falling of the rock upon plaintiff resulted. ■Appellant insists that the affirmative charge should have been given in favor of the defendant under both counts, basing its insistence mainly upon the alleged contributory negligence of the plaintiff. We are of the opinion that the case was one,' under all of the evidence, to be submitted to the jury on the question of contributory negligence. The evidence in this respect was in conflict. We cannot agree that the appellant is right in its contention as to the alleged error of the court in overruling the motion for a new trial. There is undoubtedly considerable evidence supporting the appellant’s theory of the case, but the same may be said as to the plaintiff’s contentions. The issues were very properly — 530 — submitted to a jury to determine upon a consideration of all of the evidence in the case, and we would not be justified in setting aside that determination. We will not unduly lengthen this opinion by a detailed statement of the evidence. It has had careful consideration. We will briefly observe that, Avhile there was considerable evidence tending to show contributory negligence and assumption of risk, yet the evidence adduced by the plaintiff tended to show that he was engaged in his employment by the defendant in widening a mine entry and placing supports therein, so that the same might be used for a side track; that he was putting up the permanent props under the direction and supervision of the mine foreman, one McGinnis, at distances of 5 feet apart, a distance that plaintiff thought safe; that these props or cross-collars were made of 10 x 10 timbers, íavo upright at either side and one cross-piece overhead supporting the top or roof; that said foreman then ordered him to put such cross-collars 10 feet apart, as being more economical; that he had placed one cross-collar 10 feet beyond the last one, as directed, at the time of the injury; that he was working 10 feet beyond that, marking out a hitch for another prop, when he pulled out a small rock with his pick, then a small rock fell, which he got out of the Avay of; that he then started back to the last cross-collar, making his way back to the side track where his timbers Avere, and, noticing that one of the uprights Avas a few inches out of line, he stooped to shove it back in place, as k¿ passed, but did not move, and he had gone perhaps tAVO steps, Avhen the large rock fell on him from the roof between the last íavo props that were 10 feet apart producing his injuries. There Avas also evidence tending to show that it was not safe to place the props 10 feet apart. Plaintiff testified that in doing his Avork he — 531 — was to make the roof safe, but that he was to do it according to orders. With this evidence before the court, the case was properly submitted to the jury. It cannot be said from the evidence as a matter of law that the danger was so obvious as to require the servant to desist from his work or presence at the place of the injury; under all the evidence, there being considerable conflict therein, that was a question for the jury. — L. & N. R. R. Co. v. Handley, 174 Ala. 593, 56 South. 539; Pioneer Mining & Mfg. Co. v. Smith, 150 Ala. 356, 43 South. 561; So. Ry. Co. v. Guyton, 122 Ala. 231, 25 South. 34. Applying the principles of law to the facts of each particular case, we are unable to detect anything in the cases cited by appellant which are in conflict with our holding in the instant case. See 1 Labatt on Master & Servant, §§ 438, 439, 440; 2 Labatt on Master & Servant, § 650. We find no error in the record. Affirmed. Simpson, Anderson, Sayre, and -Somerville, JJ., concur.