Bailey v. Tennessee Coal, Iron & R. Co.

• Decision Date: 07 October 1954
• Docket Number: 6 Div. 342
• Citation: 261 Ala. 526,75 So.2d 117
• Parties: Archie B. BAILEY v. TENNESSEE COAL, IRON and RAILROAD COMPANY.
• Court: Alabama Supreme Court

Page 117

75 So.2d 117

261 Ala. 526

Archie B. BAILEY v. TENNESSEE COAL, IRON and RAILROAD COMPANY.

6 Div. 342.

Supreme Court of Alabama.

Oct. 7, 1954.

D. G. Ewing, Birmingham, and Lipscomb & Brobston, Bessemer, for appellant.

Burr, McKamy, Moore & Tate, Greye Tate, Birmingham, for appellee.

GOODWYN, Justice.

Action by employee, appellant here, against his employer, appellee, claiming damages for a silicotic condition allegedly contracted and aggravated as a proximate consequence of his employment in appellee's underground iron ore mines. The complaint consists of one count and charges a violation of the common law duty of the defendant 'to exercise due and reasonable care to furnish and provide the plaintiff with a reasonably safe place in which to perform his duties' as an employee of the defendant. The specific dereliction charged is that plaintiff's working places 'were not sufficiently or adequately ventilated or * * * dampened or wetted down so as to free, rid, carry, force, or drive from said places the said silica dust and small silica particles (which plaintiff was compelled or caused to breathe and inhale therein) or to sufficiently or adequately allay or settle in said places the said silica dust and small silica particles'. It is averred that the plaintiff contracted silicosis from breathing and inhaling said silica dust and particles while working in defendant's Number 4 Muscoda Mine during the periods of January 16, 1937, to April 29, 1944, and February 28, 1946, to May 21, 1949, and that during the period of July 21, 1949, to June 30, 1950, while employed in defendant's Number 6 Muscoda Mine, his condition grew 'progressively worse as a result of the almost continuous breathing and inhaling of said dust and particles during and throughout said period'.

The suit was filed on July 12, 1950. Defendant's plea was in short by consent. The evidence was in conflict as to the conditions of employment and the extent of dust to which the defendant was exposed. A jury verdict was rendered in favor of defendant. Plaintiff's motion for a new trial having been overruled, he brought this appeal.

There are twenty-two assignments of error. However, our discussion will be limited to assignments 8, 11, 12, 13, 14, 16 and 22, which are the only ones insisted on. Except for assignment 22, they all involve the giving of written charges requested by the defendant. Assignment 22 claims error in the admission of testimony concerning a hospital record of the plaintiff. Our conclusion is that no error to reverse is presented.

Assignments 8, 11, and 12.

These assignments bring into question the following charges:

'2. I charge you that if you are reasonably satisfied from the evidence in this case that the defendant used reasonable care to furnish the plaintiff a safe place to work, then you cannot return a verdict against the defendant.

'4. I charge you that if you are reasonably satisfied from the evidence in this case that the plaintiff's working place was reasonably safe, and the defendant had no reason to anticipate that the plaintiff would be injuriously affected by dust, then you cannot return a verdict against the defendant.

'5. I charge you that if you are reasonably satisfied from the evidence in this case that the defendant in the exercise of reasonable care, had no reason to anticipate or foresee that the plaintiff would be injuriously affected by dust at his working place, then you cannot return a verdict against this defendant.'

The criticism directed to these charges is that they ignore issues in the case, viz.: whether the employer violated the provisions of Code 1940, Tit. 26, § 12; whether the employer violated Rule 24 adopted by the Board of Appeals for the Department of Industrial Relations on January 21, 1942, and revised on October 30, 1942; and whether the employer violated a duty to warn the employee of latent dangers. The complaint, however, does not charge such violations. It charges only a violation of the common law duty of the employer to furnish the employee with a reasonably safe place in which to work. And that was the issue in the case. These charges were appropriate to that issue.

Assignment 13.

This assignment relates to the giving of defendant's written charge 12, which is as follows:

'12. I charge you that if you are reasonably satisfied from the evidence in this case, that the plaintiff had knowledge of the danger of breathing iron ore dust, which said dust was necessarily incident to the mining of iron ore, and with such knowledge continued in the employment of the defendant as an iron ore miner, he assumed the risk of said employment, and you should not return a verdict against this defendant.'

It is to be noted that this charge does not direct a verdict or require a finding by the jury but merely seeks to state the rule as to assumption of risk. The evidence was without dispute that iron ore dust was necessarily incident to the mining of the iron ore. The usual statement of the general rule as to assumption of risk under the common law is that 'a servant assumes all the ordinary risks which are incidental to his employment'. Bierley v. Shelby Iron Co., 208 Ala. 25, 27, 93 So. 829; Louisville & N. R. Co. v. Wright, 202 Ala. 255, 256, 80 So. 93; Boggs v. Alabama Consolidated Coal & Iron Company, 167 Ala. 251, 253, 52 So. 878. It is thus stated in Louisville & N. R. Co. v. Wright, supra:

'The servant or employe assumes the risks necessarily incident to his employment, for such risks cannot be obviated by the master or employer; but this statement, though not infrequently met, does not express the full meaning of the rule, the more approved statement of which (aside from the requirements of those cases in which the servant is incapable of appreciating the hazards to which he is exposed) is that 'a servant assumes all the ordinary risks which are incidental to his employment.' 1 Labatt, § 259, notes. And that risk is an ordinary one which remains after the master has exercised reasonable care for the safety of his servant.'

The trial judge instructed the jury in his oral charge, to which no exception was taken, that 'ordinarily and under ordinary circumstances an employee would not assume the risk that might arise from the negligence of the employer.' If appellant had desired that the jury be given in writing a full expression of the rule of assumption of risk insofar as it involved the duty of the employer to exercise reasonable care for the safety of the servant, he should have requested an explanatory charge to that effect. Hoffman v. Birmingham Railway, Light & Power Co., 194 Ala. 30, 35, 69 So. 551; Varnon v. Nabors, 189 Ala. 464, 471, 66 So. 593; Bierley v. Shelby Iron Co., supra. Charge 12 might well have been refused as misleading, but reversible error cannot be predicated on the giving of it.

Assignment 14.

This assignment involves the giving of charge 15, as follows '15. I charge you that if you are reasonably satisfied from the evidence in this case that the negligence of the plaintiff in and about the performance of his duties as a head miner proximately contributed to cause his alleged injuries, then you cannot return a verdict against this defendant.'

The insistence is that this charge assumes negligence on the part of the plaintiff and that the giving of it was reversible error, citing in support Coleman v. Hamilton Storage Co., 235 Ala. 553, 180...