Clinton Mining Co. v. Bradford

• Citation: 192 Ala. 576,69 So. 4
• Decision Date: 04 February 1915
• Docket Number: 966
• Parties: CLINTON MINING CO. v. BRADFORD.
• Court: Supreme Court of Alabama

69 So. 4

192 Ala. 576

CLINTON MINING CO. v. BRADFORD.

No. 966

Supreme Court of Alabama

February 4, 1915

On Rehearing, May 20, 1915

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by Sam Bradford against the Clinton Mining Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The first count charged the defect in the ways, works, machinery etc., of defendant, in that the roof of the mine in which plaintiff was working was defective.

The second plea was as follows:

Defendant says plaintiff was himself guilty of negligence which proximately contributed to the injuries complained of in this: Plaintiff at the time he sustained the injuries complained of was engaged in mining in a certain heading in defendant's mine in the roof of which near the place at which he was at work there was some loose rock or slate which was likely to fall, which fact and the danger to plaintiff arising therefrom was known to plaintiff, or should have been known to him in the exercise of due care, notwithstanding which plaintiff went under said rock or loose slate, and the same fell, striking him and causing the injuries complained of.

The instruction made the basis of the second assignment of error is as follows:

I charge you that, if you believe plaintiff is entitled to recover, you may award him such damages for his pain and suffering, if you believe from the evidence that he has had such pain and suffering, as, in your sound discretion, you think he is entitled to.

Assignments of error:

(4) If you believe from the evidence that it was impracticable in the conduct of defendant's mining operation to set timbers any closer to the place of ore than they were set in the instant case, you cannot find defendant guilty of negligence for failing to set such timbers.

(7) In overruling defendant's objection to the question to the witness Thompson: "I will ask you if it is not a fact that on Saturday Sam asked you to set him some timbers there, in the presence of Elbert Steele, and you told Sam this, or these words, or this in substance, to go ahead, that you would not give him any timbers at this time; to go ahead and work in that entry?"

(8) Overruling defendant's objection to the question to the witness Bradford: "If, on Saturday, when you reported to Mr. Thompson that you didn't have--reported to him that you wanted some timber, he made this statement to you, in substance, that he would not let you have any more timbers then, but for you to go ahead and work in that entry."

Percy Benners & Burr, of Birmingham, for appellant.

Hugo Black, of Birmingham, for appellee.

McCLELLAN J.

This action, instituted by the appellee against appellant, was finally tried on issues tendered by the first count of the complaint. It was drawn to state a cause of action under the first subdivision of the Employers' Liability Act (Code § 3910). The means of injury was the falling of rock or slate upon him from the roof of defendant's ore mine.

In addition to the general issue, the defendant interposed plea 2, which the report of the appeal will contain. This plea attributed the injury complained of to the alleged fact that plaintiff negligently exposed himself to the injury he received by going under loose rock or slate in the roof of a certain heading in the mine, of the dangers of which action he was aware or should have known had he observed ordinary care. The plaintiff's demurrer to the plea was overruled.

It is now insisted for appellant that there is no evidence in the record tending to sustain the material averment that at the time plaintiff was injured the relation of master and servant existed; but, to the contrary, it is asserted that the evidence undisputedly showed that the plaintiff was a "contractor." Warrior-Pratt Coal Co. v. Shereda, 183 Ala. 118, 62 So. 721; Hubbard v. Coffin & Leake, 67 So. 697. No suggestion of this nature appears to have been intimated or made during the trial below. On the other hand, the court gave to the jury at the instance of defendant (appellant) its charge numbered 8, wherein rules of law applicable to "employer" and "employé" (we quote these terms from the thus given charge) were defined in respect of the measure of care due an "employé," by the "employer," and the nature of the risks assumed by the "employé." Having thus voluntarily induced the court to advise the jury as its charge 8 did, the defendant (appellant) cannot be here heard to urge error as upon the refusal of the court to give effect to an entirely inconsistent theory in the premises. L. & N.R.R. Co. v. Holland, 173 Ala. 675, 697, 55 So. 1001, and cases therein cited.

At the request of the plaintiff the court gave the following instruction to the jury:

"I charge you that you cannot find plaintiff guilty of contributory negligence by reason of his remaining in the employment of defendant after knowledge of a defective roof, if you believe from the evidence that the roof was defective, unless it was his duty to remedy such defect." It is manifest that the effect of giving this instruction to the jury was to eliminate the substance of plea 2 from consideration by the jury, and to deny to defendant the benefit of the matter of the plea in bar of the recovery sought under the first count of the complaint, the plea 2 having been held not subject to the demurrer interposed.

In the presently important particular Code, § 3910, reads:

"Provided that in no event shall it be contributory negligence or an assumption of risk on the part of the servant to remain in the employment of the master or employer after knowledge of the defect or negligence causing the injury, unless he be a servant whose duty it is to remedy the defect, or who committed the negligent act causing the injury complained of."

We have recently had occasion to consider this feature of the statute (section 3910) in the concrete cases of Burnwell Coal Co. v. Russ Setzer, 67 So. 604, and Standard Cement Co. v. Thompson, 67 So. 608. In the former case it was ruled, in substance, that the theory the trial court put into effect by its rulings, viz., that the 1907 addition to the statute effected to inhibit the defenses of assumption of risk and of contributory negligence in all circumstances except the two mentioned in the last sentence in the quoted feature of the statute, was erroneous, because of a misinterpretation of the effect of the 1907 addition to the statute. In the latter case it was ruled, in substance, that the 1907 addition to statute (section 3910), before quoted herein, did not operate to repeal or to qualify the preceding feature of the statute, viz., that forbidding a recovery where the employé knew of the defect or negligence, and failed within a reasonable time to give information thereof to the master or to a superior, unless the master or the superior knew of such defect or negligence. It is not to be supposed that the last-indicated feature of the statute was left in it to no purpose, which would be the result if the 1907 addition to the statute was interpreted as destroying the defenses of assumption of risk and of contributory negligence, except in the two cases mentioned in the last sentence of the addition quoted ante.

So, without assuming to interpret the present statute (section 3910) beyond the necessities of the concrete case presented, and drawing down to the present for complete statement of and giving effect to, the statute as it exists, in virtue of the mentioned addition in the Code of 1907, we can now state its whole effect in respect of causes of action under the first subdivision of the Employers' Liability Act, which is that the defenses of assumption of risk and of contributory negligence are available in only three circumstances, viz.: (a) Where, as in the Thompson Case, supra, the servant knows of the defect or negligence and fails to give information thereof within a reasonable time to the master or to a superior in the service, unless the master or such superior knows of the defect or negligence, (b) where the injured servant, whose duty it is to remedy the defect alleged to have caused his injury, knew of the existence of the defect or negligence, and thereafter remained or continued in the service and was injured, (c) where the injured servant "committed the negligent act causing the injury complained of," meaning a breach of some duty by the servant whereby the defect, or negligence predicable of it, was caused by the act or omission of the servant suffering the injury, thus negativing in that respect the existence of a defense based on assumption of risk or contributory negligence other than may arise from the breach of duty by the servant to which we have last referred. See H. Ave. & B.R. Co. v. Walters, 91 Ala. 435, 443, 8 So. 357, 360, where it is said:

"An employé cannot create or consent to the creation of a defect, and hold the company answerable in damages for any injury caused thereby."

To "remain in the employment" signifies continuing in the service or work of the master in the zone of possible danger of injury to that servant, who then knows of the existence of the defect or negligence to which, under the first subdivision of the act (section 3910), his injury is attributed in his pleading.

In the light of these considerations it is manifest that plea 2 was subject to aptly grounded demurrer. Under its obvious theory that plea was faulty in that it was not averred that the plaintiff was under the duty to remedy the defect described in the complaint, or that he committed the above-defined negligent act causing the injury complained of. But no ground of the demurrer took the objection indicated. The perhaps apt analogy afforded by the ruling made in L. & N.R.R. Co. v Wilson, 162 Ala....