Alabama Connellsville Coal & Iron Co. v. Pitts

• Decision Date: 02 May 1893
• Citation: 98 Ala. 285,13 So. 135
• Court: Alabama Supreme Court
• Parties: ALABAMA CONNELLSVILLE COAL & IRON CO. v. PITTS.

13 So. 135

98 Ala. 285

ALABAMA CONNELLSVILLE COAL & IRON CO. v. PITTS.

Supreme Court of Alabama

May 2, 1893

Appeal from city court of Birmingham, Jefferson county; William W Wilkerson, Judge.

Action by Batiste Pitts, as administrator, against the Alabama Connellsville Coal & Iron Company, to recover damages for death of Peter Pitts. Judgment was rendered for plaintiff and defendant appeals. Reversed.

All the facts pertaining to the pleadings and as disclosed in the bill of exceptions are sufficiently stated in the opinion. After the introduction of all the evidence, and after the court had charged the jury on the law applicable to the case the plaintiff moved for leave to strike count No. 3 from the complaint, and amend count No. 2. The defendant objected to the granting of this motion. The court overruled his objection and granted the motion, and defendant excepted.

The court, at the request of the plaintiff, gave the following charge to the jury: "The master is bound not to expose the servant to dangers of which he knows, or has reason to know, the servant is not aware. He is bound to fully apprise the servant of dangers incident to the business, which he (the employer) ought to know." The defendant excepted to the giving of this charge, and also separately excepted to the refusal of the court to give each of the following charges, as requested by it: (1) "If you believe the evidence, your verdict must be for the defendant under the first count of the complaint." (2) "If you believe the evidence, your verdict must be for the defendant under the second count of the complaint." (3) "If you believe the evidence, your verdict must be for the defendant under the fourth count of the complaint." (4) "If you believe the evidence, your verdict must be for the defendant under the fifth count of the complaint." (5) "If you find from the evidence that the tramway and tipple were adapted to the work expected to be done with them, and were reasonably safe for the ordinary and usual work done on them, then there was no negligence in ordering Peter Pitts to go up on the trestle and help push the cars." (6) "The burden of proof is on the plaintiff to establish by proper evidence that there was a defect in defendant's works, and that Peter Pitts' injuries were directly caused by the defect; and if, after considering all the evidence, you are not reasonably satisfied that there was a defect, and, in addition thereto, that this defect was the direct cause of the injury, your verdict must be for the defendant." (7) "If you find from the evidence that Peter Pitts was directed to help push the car on the tramway and that he was injured while stooping over the end of the pole, and not in a position required to be assumed by him in pushing or holding back the car, you will find a verdict for the defendant." (8) "If you find from the evidence that the tipple pole flew up and struck Peter Pitts because the two men who were charged with the duty of managing the tram car had negligently failed to put the ring over the end of the pole so as to hold it down, you will find a verdict for the defendant." (9) "If the jury find that the accident was due solely to an unusually heavy load on the car to be handled on the tipple, and the nature of that load, then your verdict must be for the defendant." (10) "The burden of proof is on plaintiff to establish by proper evidence that defendant's servant ordered Peter Pitts to go up on the tramway and help do the very work which he was doing when injured; and if you are left in doubt, and not reasonably satisfied from the evidence, that defendant's said servant knew that this tipple pole was likely to fly up prematurely when a properly loaded car was placed on the tipple in the usual way, and that under his orders Peter Pitts would reasonably be expected to come in contact with the pole while carrying out his orders, and that said pole did fly up prematurely and injure Pitts while he was in a position required of him in the performance of the duty said servant had directed him to perform, then your verdict must be for the defendant." (11) "Should you get so far as to estimating the amount of damages under the law as I have charged you, in making this estimate as to compensatory damages you will exclude from such calculation, in this case, the earnings and savings of deceased up to the age of 21 years, and in this case only calculate on what is earned and saved after that age."

Chisholm & Whaley, for appellant.

Smith & Lowe, for appellee.

STONE C.J.

This action is brought under the employer's act, (section 2590, Code 1886.) It counts on the negligent and unlawful killing of Peter Pitts, an employe of the appellant corporation. The complaint was amended by striking out the third count, and the trial was had on the remaining four counts. A demurrer was interposed to each of the counts of the complaint, which the city court overruled; but that ruling is not assigned as error. The appellant corporation was operating a coal pit. It had an elevated tramway, erected and operated for the purpose of removing the refuse which was mined with the coal. At the end of the tramway was machinery called a "tipple," used in emptying the refuse from the cars. The cars on this tramway were moved by hand power and plaintiff's intestate was employed in this service at the time he suffered the injury which caused his death. The machinery which operated the tipple is described in the first count of the complaint as follows: "Plaintiff alleges that said tipple was connected with said track by means of a pole about nine feet in length, one end of which pole was fastened to the tipple, and the other end projected over and along the track, and was held in place by means of an iron ring, or belt, or groove fastened to the track, and placed over the end of the pole, and was so constructed that when the said hand car had reached the tipple, and said ring or belt or groove was removed from the end of the pole, the said end would go up in the air as the tipple went down." The negligence of defendant charged in this, the first, count, is that plaintiff's intestate, in what he did, was conforming to orders he was bound to obey, and, while so obeying and conforming to orders, "the end of said pole which extended over the track flew up with great violence, and struck plaintiff's intestate, and injured him so that he died. And plaintiff alleges that said pole was likely to fly up prematurely, and had often done so before, and the work that plaintiff's intestate was directed to do *** was thereby rendered hazardous and dangerous; and said person in the employment of defendant, to whose orders he was bound to conform and *** did conform, knew that said pole was liable and likely to fly up prematurely, and had often done so before. *** That the injury and death *** were caused by reason of the negligence of the said person, to whose orders plaintiff's intestate was bound to conform and did conform." The gravamen of the second count is "that said tramway or trestle became and was in a defective condition in this; that that part of the tramway or trestle approaching and next to the tipple had become and was much lower than the portion nearer the mouth of the mine; *** and by reason of the defect in the condition of the tramway and trestle as aforesaid the said car went with great force and speed upon said tipple, and caused the same to tip suddenly and violently, and thereby caused a pole which was attached to said tipple *** to fly up and strike plaintiff's intestate," etc. The fourth count is substantially like the first, with this addition: "Plaintiff alleges that said injury was caused by reason of a...