Birmingham Ore & Mining Co. v. Grover

• Decision Date: 04 February 1909
• Citation: 159 Ala. 276,48 So. 682
• Parties: BIRMINGHAM ORE & MINING CO. v. GROVER.
• Court: Alabama Supreme Court

48 So. 682

159 Ala. 276

BIRMINGHAM ORE & MINING CO. v. GROVER.

Supreme Court of Alabama

February 4, 1909

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by Charley Grover against the Birmingham Ore & Mining Company for personal injuries caused by blasting. There was judgment for plaintiff, and defendant appeals. Reversed and remanded.

The counts in the complaint are as follows:

"(1) Plaintiff claims of defendant $5,000 as damages, for that heretofore, on, to wit, the 26th day of April, 1907 defendant was engaged in the operation of a certain ore mine at or near, to wit, Helen Bess, in Jefferson county Ala., and had servants in its employment engaged in blasting in and about the operation of its said business at said mine. Plaintiff avers that on said day there was a spur track extending from the main line of the Louisville &amp Nashville Railroad Company to or into the said ore mine of defendant, along and over which said spur track railroad trains were operated by said Louisville & Nashville Railroad Company, for the purpose of transporting ore from said mine of defendant. Plaintiff avers that on said day he was in the employment of the said Louisville & Nashville Railroad Company as a brakeman, and while in said employment as a brakeman on one of said trains operated by said Louisville & Nashville Railroad Company, along and over said spur track, said train was propelled or run into or to said ore mine of defendant for the purpose aforesaid. Plaintiff avers that said ore was loaded upon said train by the agents of the defendant, and that on said day, while said train upon which plaintiff was a brakeman as aforesaid was at said mine, and while plaintiff was engaged in coupling the cars of said train, one or more of the employés or agents of the defendant, who were at the time engaged in working on top of the cut over said place where plaintiff was engaged as aforesaid, made a blast or fired a shot, and a rock or other hard substance was hurled or thrown by said blast or explosion, striking plaintiff on the head with great force and violence, knocking him down and rendering him unconscious, whereby, and as a proximate consequence whereof, plaintiff was rendered sore and sick, and was painfully injured, was for a long time rendered wholly unable to work and earn money, was rendered permanently disabled to work and earn money, was put to great expense for medicine, medical care, and treatment in and about his efforts to heal and cure himself, and suffered great mental and physical pain. Plaintiff avers that said servant or servants of defendant were at said time acting within the line and scope of their employment, and that said shot or blast was fired without notice or warning being given to the plaintiff. Plaintiff further avers that he suffered said injury and sustained said damages by reason and as a proximate consequence of the negligence of defendant in suffering or allowing said blast or shot to be made or fired at a time when plaintiff was engaged as aforesaid at said place, without sufficient notice or warning being given as aforesaid. Hence this suit.

"(2) Plaintiff claims of the defendant $5,000 as damages, for that heretofore, to wit, on the 26th day of April, 1907, defendant was engaged in the operation of a certain ore mine in Jefferson county, Ala., and on said day plaintiff, who was at said time in the employment of the Louisville & Nashville Railroad Company as a brakeman, was by consent or invitation of the defendant upon the premises where said ore mine was being operated by defendant as aforesaid. Plaintiff avers that, while upon said premises as aforesaid, a certain blast or explosion or shot was made or fired by some person engaged in and about getting out ore for the defendant at its said mine, and a certain rock, missile, or hard substance was by said blast, explosion, or shot hurled with great force and violence, striking plaintiff upon the head, fracturing his skull, and inflicting serious and painful injuries, whereby plaintiff was rendered sore and sick. [ Here follows catalogue of injuries as stated in count 1.]"

Demurrers were interposed to count 1 as follows: "(1) It shows no breach of duty...