Alabama Consol. Coal & Iron Co. v. Hammond

• Decision Date: 30 June 1908
• Citation: 47 So. 248,156 Ala. 253
• Parties: ALABAMA CONSOL. COAL & IRON CO. v. HAMMOND.
• Court: Alabama Supreme Court

47 So. 248

156 Ala. 253

ALABAMA CONSOL. COAL & IRON CO. v. HAMMOND.

Supreme Court of Alabama

June 30, 1908

Appeal from Circuit Court, Etowah County: W. W. Haralson, Judge.

Action by M. W. Hammond, administratrix, against the Alabama Consolidated Coal & Iron Company, for the death of plaintiff's intestate. From a judgment for plaintiff defendant appeals. Reversed.

Hood &amp Murphree, for appellant.

Goodhue & Blackwood, for appellee.

TYSON C.J.

The complaint, when filed, contained four counts, numbered 1, 2 3, and 4. It was subsequently amended by adding counts numbered 5 and 6. The finding of the jury was expressly upon counts numbered 2 and 3, thus eliminating from consideration all rulings of the court respecting the sufficiency of all counts other than these two, and all pleas interposed to the others.

The first of these was clearly attempted to be framed under subdivision 3 of the employer's liability act (section 3910 of the Code of 1907). After averring the relation of master and servant between plaintiff's intestate and the defendant, and the authority of Varnon to give orders to deceased, to which the latter was bound to conform and did conform, it is further averred that "the negligence complained of consisted in this: That Varnon negligently directed plaintiff's intestate to shovel dirt and rock from a bench on a wall, where there was a rock in such position that it was liable to fall upon plaintiff's intestate and injure him; that the fact that said rock was in such a position that it was liable to fall and injure plaintiff's intestate was known to said Bud Varnon, or by the exercise of due diligence should have been known to him at and before the time he directed plaintiff's intestate to shovel dirt and rock at a place where said rock was liable to fall upon and injure him." It is entirely clear that the gravamen of the count was the negligent giving of an order by Varnon which caused the deceased, in obedience thereto, to perform work for defendant in an unsafe place. The negligence complained of is predicated upon the averment of knowledge upon Varnon's part of the hazardous character of the place, or upon the fact that by the exercise of due diligence he should have known that it was unsafe. It is also entirely clear that, unless superintendence of the place was committed to Varnon, as well as the authorization to give the order complained of, no duty rested upon him to ascertain its safety. Non constat, the maintenance of its safety was committed to another, and, if it was, Varnon (in the absence of knowledge or notice of its unsafe condition) had the right to assume that it was safe, and was under no duty to exercise due care in ascertaining its condition. Indeed, on the averments of the count, unless Varnon knew or had reason to believe that the rock was liable to fall, the giving of the order could not have been negligent. Geo. Pac. R. R. Co. v. Davis, 92 Ala. 313, 9 So. 252, 25 Am. St. Rep. 47; Bridges v. T. C. I. & R. R. Co., 109 Ala. 287, 19 So. 495; B. F. M. Co. v. Gross, 97 Ala. 220, 12 So. 36; Dresser's Employer's Liability, pp. 300-308. Moreover, if superintendence of the place was committed to Varnon, it may be seriously doubted whether the proximate cause of the injury should not be ascribed to the defect in the works or ways of defendant, rather than to the negligent exercise of superintendence. But, however this may be, it is clear to us that the injury cannot be ascribed to the negligent giving of an order by Varnon, unless, as we have said, he knew or had reason to believe that the place was unsafe. The demurrer to said count should have been sustained.

The other count was framed under subdivision 1 of said act, and sought a recovery for the death of plaintiff's intestate by reason of a defect in the condition of the ways, works, machinery, or plant used in the business of defendant. It is alleged "that said defect arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service of defendant and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition; that said defect complained of consisted in this: That a wall under which plaintiff's intestate was engaged in the performance of his duties at and prior to the time of his death was insecure and unsafe, so that a rock fell therefrom upon plaintiff's intestate and killed him." The objection urged against the sufficiency of this count is that it does not appear that the wall was a part of the ways, works, etc., of the defendant. The objection is not well taken, for the reason that it is in the teeth of the averment of the complaint. It being so averred, the averment must be taken as true against the demurrer.

Under the testimony we do not doubt that the wall was a part of the ways or works of the defendant, within the meaning of subdivision 1 of the act, and that the duty was upon defendant to discover and remedy the defect complained of. Indeed, it is shown by the undisputed testimony that defendant assumed the performance of this duty, by having the wall inspected and picked, so as to relieve its servants from the danger (which would otherwise obtain) of being injured by falling rock, etc. It is undoubtedly the law that the defendant was under the legal duty to furnish to the deceased a reasonably safe place in which to work, and to this end it was its duty to inspect the wall as often as was necessary to prevent injury to him and to its other servants engaged in work upon the bench, as the result of rock or other substances falling from the surface of the wall. Bailey's Master's Liability for Injuries to Servants, p. 108. And the more the weather conditions were conducive to the falling of rock or other substances, the greater was the diligence required with respect to the examination or inspection of the wall.

The evidence also establishes, without dispute, that after a snow, freeze, or rain the wall was dangerous to those engaged in work upon the bench below, because of falling rock and other substances, and that this was known to the defendant's servants engaged in work at its quarry. These conditions caused the loosening of rock and other substances which, unless removed by the inspector, would fall. It also tends to show that the rock which fell and struck deceased could have...