Alabama By-Products Corporation v. Cosby

• Decision Date: 03 November 1927
• Docket Number: 6 Div. 890
• Citation: 115 So. 31,217 Ala. 144
• Parties: ALABAMA BY-PRODUCTS CORPORATION v. COSBY.
• Court: Alabama Supreme Court

115 So. 31

217 Ala. 144

ALABAMA BY-PRODUCTS CORPORATION v. COSBY.

6 Div. 890

Supreme Court of Alabama

November 3, 1927

Rehearing Denied Jan. 12, 1928

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for personal injuries by Etta Cosby, by her next friend J.A. Cosby against the Alabama By-Products Corporation. From a judgment for plaintiff, defendant appeals. Affirmed conditionally.

$4,500 damages for injury to child held excessive by $1,500.

Counts 3 and 5 of the complaint, upon which the trial was had, are as follows:

"(3) The plaintiff claims of the defendant the sum of $50,000 for personal injuries suffered by plaintiff proximately caused by the negligence of defendant's officers, agents, servants, or employees, while acting in line with, and within, the scope of their employment. The plaintiff avers that the defendant's officers, servants agents, or employees, while acting in line with and within the scope of, their employment, did negligently permit a great artificial hole or excavation commonly called a mine entrance of great and dangerous depth, and dangerous to children, to be and remain upon its premises at or near Bradford in Jefferson county, unguarded, uncovered, and in such condition as to be dangerous to children under three years of age; and plaintiff further avers that she was invited to be, and to play around, said artificial hole or excavation, and that the defendant, its officers, agents servants, or employees, either knew, or in the exercise of due diligence should have known, that said artificial hole or excavation was a place of great danger to plaintiff, and plaintiff further avers that on January 30, 1926, while on said premises by said invitation of said defendant, its officers, servants, agents, or employees, as such, the plaintiff slipped and fell into said artificial hole or excavation, and thereby suffered serious injuries to wit, a fracture of the leg near the hip, lacerations bruises, cuts, abrasions, and contusions, from which she suffered great physical and mental pain and anguish and permanent physical injuries.

"And plaintiff says that her said injuries as aforesaid were proximately caused by the negligence of the defendant, its officers, agents, servants, or employees, while acting in line with, and within the scope of, their employment as aforesaid, wherefore this suit."

"(5) Plaintiff claims of the defendant the sum of $50,000 as damages, for that on, to wit, January 30, 1926, plaintiff, who is a minor, and under the age of three years, was living with her father and in his home, which home was located on the defendant's premises at or near Bradford, in Jefferson county, Ala. Plaintiff avers that, previous to said date, the plaintiff's father, J.A. Cosby, had become employed by the defendant to work in and around the defendant's coal mine, and that the entry to said coal mine was, to wit, within 40 feet of the home in which the plaintiff was living on, to wit, January 30, 1926, and plaintiff avers that the defendant owned said home, which was a wooden building, and that the defendant owned other homes or wooden buildings used for homes, on its said premises, and in immediate proximity to, and about said mine, and that the defendant leased said home to the father of this plaintiff as a part of the contract of employment of the plaintiff's said father, and plaintiff avers that, at the time her said father entered into the contract of employment and the contract whereby the defendant agreed to permit the said father to use the said home, the plaintiff's father did notify the agent of the defendant, with whom the said contract was made, that he had five children, and that plaintiff further avers that the said agent of the defendant knew that the said house which plaintiff's father was to occupy was approximately within 40 feet of the entry to the said mine. Plaintiff further avers that as a part of the entry to said mine there was a ditch or excavation of varying depths, and that the sides of said ditch or excavation were approximately perpendicular, and that in some places the said ditch or excavation was 12 feet in depth, and along the bottom of said ditch the ground was hard, and there were rocks embedded therein. Plaintiff further avers there were no guards around said ditch or excavation, and that there was no wall, and that the top of said ditch or excavation was on a level with the surrounding ground and territory, and, after a rain would become slick and slippery, and that there was no wall or obstruction of any kind between the home which was occupied by plaintiff and her father and the said ditch or excavation. Plaintiff further avers that said ditch or excavation was an artificial ditch or excation, maintained there as such by the defendant. Plaintiff further avers that there were other small children in the houses owned by the defendant, and who were the children of the men working for the defendant company, and that said children did play on the premises of the defendant, and that there were houses on either side of said excation, and the defendant's servant, agent, or employees, acting for the defendant, within the line and scope of their duty as such, in and around said mine and premises, knew that children did play on said premises. Plaintiff further avers that said ditch or excavation was dangerous for children of immature years, which fact was known to the defendant, if said children should be playing on and around the premises owned and maintained by the defendant at said time and place. Plaintiff further avers that, if defendant did not know that children played in and around said excavation or ditch, it should have known such by the exercise of reasonable diligence, and that, if it did not know that the same was dangerous for children of immature years, it could have known such fact by the exercise of reasonable diligence. Plaintiff further avers that on the date aforesaid she was close to said dangerous ditch or excavation, and did fall therein, and did fall in close proximity to a rock, which was embedded in the mud in the bottom thereof. Plaintiff further avers that her father bought coal from the defendant, and it did deliver plaintiff's coal and place it within about 8 feet of the excavation, which coal was to be used, and was used, by the plaintiff's father and family in the home before described. Plaintiff further avers that the contract or lease of the said house by the defendant to the father of the plaintiff was not in writing, and that the premises were not particularly described in the contract, but that plaintiff's father was given by the defendant for a consideration of, to wit, $6 a month, the use of the house and the premises, and that the premises were not fenced or inclosed, and there were no lines of any kind defining the extent or boundaries of said premises, and plaintiff's father did, after becoming an occupant of said house and premises, use the said premises immediately next to the said ditch or excavation for removing the coal from the pile of coal before described. Plaintiff further avers that the said ditch or excavation was about 10 feet in width, and gradually descended to an opening into the ground, which was used by the defendant as an entry into the mine at the time the plaintiff's father moved into the house, and was being used as such on January 30, 1926. Plaintiff further avers that on, to wit, January 30, 1926, she was between the coal pile

and the ditch or excavation, and it had been raining, and she did fall in said ditch or excavation as aforesaid, breaking her leg, bruising and lacerating her, causing her to suffer much physical pain and mental anguish, and has been permanently injured and deformed, all to her damage as aforesaid. Plaintiff avers that all of her said injuries and damages were the proximate result of the defendant's negligence in and about its control of said deep ditch or excavation, in that the defendant failed to exercise reasonable diligence to adopt reasonable and proper safeguards to protect plaintiff from the danger of falling into the deep ditch or excavation under the circumstances and conditions as hereinbefore set forth."

Defendant excepted to the following excerpts from the oral charge of the court:

"Whether or not the plaintiff was a trespasser upon the premises on which this ditch or excavation was located is a question of fact for the determination of the jury under all the evidence in the case. Now, in determining such fact you may take into consideration the relation of the father of the plaintiff to the defendant, and the undisputed evidence in the case is that this little girl's father was a tenant of the defendant, and you may take into consideration whether or not the premises upon which this ditch or excavation was located was necessary for the comfort and convenience of the plaintiff's father and his family. Now, if the relation and the facts in the case are such as to render the place necessary for the comfort and convenience of this plaintiff's father and his family, and the home there, and he had a right to be there, why, then that right would extend to members of his family, and that includes the plaintiff in this case."

"Whether or not the defendant observed that reasonable degree of care an ordinary prudent person would have observed in having and maintaining the ditch or excavation on the premises, and whether or not such ditch or excavation was dangerous to those on the premises, by invitation either express or implied, are questions for the determination of the jury under all the evidence in the case."

"Whether or not the defendant had knowledge of the dangerous ditch or excavation, if any, or knowledge that children were wont to be about,

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