Woodward Iron Co. v. Wade

SOMERVILLE, J. (1) The burden of proof is on the plaintiff to show that the master’s order, in the execution of which he Avas injured, Avas a negligent order, under the circumstances, or he cannot recover under the third subdivision of the Employers’ Act (Code, § — 657 — 3910). That is to say, it must have been reasonably apparent to the master, or his vice principal who gave the order, under the condition as he knew or ought to have known them, that the servant’s execution of his command would expose the servant to some peril, beyond the ordinary risks of his service, and against which ordinary and reasonable care on his part would probably not suffice to protect him. — See 1 Labatt on M. & S., § 317. (2) If this peril ivas obvious to the servant, and might readily be avoided by him while fully discharging his duty of service in conformity with the order given him, the master had the right to assume that the servant would both observe the peril and avoid it; and the order was not negligently given. — Davis v. Western Ry. of Ala., 107 Ala. 626, 633, 18 South. 173. (3) If, on the other hand, the peril was not obvious, but was inherent in the conditions necessarily surrounding the servant while executing the master’s order (conditions which the master could and should have known, and of which, if not remedied, the servant could expect the master to seasonably inform him), the master’s order, without such warning, ivas negligent and actionable. — 1 Labatt on M. & M., § 137. (1, 5) Under the evidence, it is clear that, with respect to the driving of this entry, and its completion according to the contract (including the putting of the track on center, as required by defendant’s bank boss), plaintiff was an independent contractor; and, even if not technically such, his relation to defendant, and the precautions required of defendant with respect to the condition of the entry, were materially different from the case of an ordinary miner working in its mines. “It is well settled that where the instrumentality which caused the injury was still incomplete at the time — 658 — of the accident, and the injured servant ivas engaged in the work of bringing it to completion, the question whether the master was in the exercise of due care is determined with reference to a lower standard than that which is applied in the case of instrumentalities which have been put in a finished condition, and are in regular use in the normal course of the business. A similar qualification of the master’s liability is admitted where the express purpose of assisting in the repair, demolition, -or alteration of some instrumentality, and the unsafe conditions from which the injury resulted, arose from or were incidental to the work thus undertaken by him.” — 1 Labat-t on M. & S., § 29. This doctrine has been sanctioned by this court.— Tobler v. Pioneer M. M. Co., 166 Ala. 482, 506, 52 South. 86, 95. In that case we said: “The duty which originally rests upon the master to furnish safe ways, works, and machinery for the time being, and for the purpose of construction or repairing, is suspended. It would be unreasonable to hold the master to' the same degree of strictness,, while he is constructing his plant or repairing the. ways, works, or machinery, as is required of him after he has constructed, or after the repairs have been completed, and the plant is in operation.” (6) In the present case Ave feel no hesitancy in declaring that upon the undisputed evidence, and as a matter of law, the instruction given by Henderson to plaintiff to put the entry or track on center, Avas net a negligent order, and that defendant is not liable for the injury suffered by plaintiff. The order was general in its terms, and required of plaintiff what was necessary’ to be done, and Avhat he Avas employed to do; and he undertook to do it in his own way, so far as methods and details Avere concerned. — 659 — Conceding that its accomplishment required the removal of the props which supported that section of the roof, in order that the roof might be shot away, it by no means required that plaintiff should either go under the low roof, or remain there four or five minutes after a prop had been removed. — 1 Labatt on M. & S., § 444. Henderson had the right to assume that plaintiff would avoid an utterly unnecessary exposure of his person to a danger of which experience must have warned him, and of which common sense must needs have informed even the most inexperienced. A general instruction to a person who has undertaken to do a piece of work, involving judgment, skill, and care, to make it conform to contractual requirements, is a very different thing from ordering a dependent servant to do a particular act of service. Conceding that it was defendant’s general duty to inspect all the places where its employees worked, and to give warning of gas and of rocks that were working loose in the roof, it was not under any duty to test this roof as to its stability without supports while its alteration was under way, under the exclusive control and direction of plaintiff, a skilled contractor whose duty it confessedly was to put in all props, to timber up the heading and take care of it, and to examine his place of work, and who moreover knew and understood the conditions to be encountered better than any servant of defendant. But suppose the bank boss, or other vice principal, had made an inspection in the customary and approved way, viz., by sounding the overlying rock with a hammer shortly before the accident. Plaintiff’s own testimony, in no wise disputed, demonstrates to a certainty that nothing would have been discovered indicative of loose rock or of specific danger therefrom; and hence — 660 — it is clear the catastrophe would not have been thereby avoided. Henderson’s statement to plaintiff that “the place Avas all right” could not have-been intended or accepted as other than a general assuranc'e of general conditions. Clearly plaintiff could not and did not accept it as an assurance that the rock over the props had been tested and would stand if the props were removed. On the contrary, he recognized his own duty in the matter, and made a proper and careful test for himself, which satisfied him so thoroughly that he placed himself under the unsupported roof, Avhich he even noAV testifies Avas then “sound and all right.” This casé is, as to essential facts and elements, very like the case of Adams v. Corona C. & I. Co., 183 Ala. 127, 62 South. 536, where it was said: “According to plaintiff’s own testimony, if the rock was loose it Avas his duty to have discovered that it was loose. If it was not loose, then the bank boss could not have been negligent.” In this connection we quote with approval the following pertinent statement of the laAv: “In mining, as in other vocations of life, it is necessary to employ skilled employees to- handle different departments of the business, and such employees are frequently better informed of the risk and necessities of their particular branch of the business than the employers themselves. To hold that such an employee, with full knoAvledge of the dangers and attendant risks, could rely upon his own judgment as to the liability of a given slab or boAvlder to fall, and then, after an injury, hold his employer for the resulting injury, would be to make the latter responsible for the lack of judgment of his employees, and this the law does not attempt to do. In all the different trades and callings Avhere others are employed, it is elementary law that if the employees possess equal or superior information to> the employ — 661 — er, in regard to the danger from a given place or appliance, then, in case an injury results, the employee is held, in law, to have assumed the risk, as an incident of his employment. This Avell-known doctrine of the laAV of master and servant applies to injuries resulting from slabs and boAvlders in mines, as Avell as to other injuries, from different causes, in such vocation.” — White on Personal Injuries, § 395. On these undisputed facts no negligence can possibly be imputed to Henderson in requiring plaintiff “to put the entry on center.” It results that plaintiff made out no case for submission to the jury, and the court erred in refusing to give the peremptory charge for defendant. In this view of the case Ave deem it unnecessary to pass upon several other questions of pleading, evidence, and refused charges, presented by the assignments of error. (7) It is urged by the appellee that Ave cannot on this appeal find error in the refusal to give for defendant the general affirmative charge, for the reason that several of the witnesses referred during their testimony to a diagram draAvn on a blackboard and visible to the jury, and this diagram is not included in the bill of exception. What this diagram shOAved, however, Avas fully explained in the bill of exceptions, and all this clearly appears from the evidence without the aid of a diagram. It clearly appears, also, that the diagram was used only for the purpose of shoAving how and at what extent the “centers” furnished by the engineers Avere obscured from plaintiff’s vision, and hence to show who was to blame for his getting off of center. That inquiry, if relevant to any issue, Avas wholly irrelevant to the question of defendant’s negligence in giving the alleged order to plaintiff, and it is not conceivable that such — 662 — a diagram could exert the slightest influence in the determination of that question. Certainly it could engender no conflict in the evidence relating to that subject, and our conclusion could not be affected by it. — W. U. T. Co. v. Jones, 190 Ala. 70, 66 South. 694; L. & N. R. R. Co. v. Williams, 172 Ala. 560, 55 South. 218. For these reasons we cannot apply to this case the general rule as illustrated by the cases of Warble v. Sulzberger, 185 Ala. 603, 64 South. 361, and Continental Gin Co. v. Milbrat, 10 Ala. App. 351, 65 South. 424. The judgment will be reversed, and the cause remanded. Reversed and remanded. Anderson, C. J., and Mayeield and Ti-iomas, JJ., concur.