Clinton Mining Co. v. Bradford, 6 Div. 429

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 76 So. 74,200 Ala. 308
• Parties: CLINTON MINING CO. v. BRADFORD.
• Docket Number: 6 Div. 429
• Decision Date: 10 May 1917

76 So. 74

200 Ala. 308

CLINTON MINING CO.
v.
BRADFORD.

6 Div. 429

Supreme Court of Alabama

May 10, 1917

Rehearing Denied June 14, 1917

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Action by Sam Bradford against the Clinton Mining Company, for personal injury. Judgment for plaintiff, and defendant appeals. Affirmed. [76 So. 76]

Percy, Benners & Burr, of Birmingham, for appellant.

Hugo L. Black, of Birmingham, for appellee.

THOMAS, J.

This is the second appeal in this cause. See report of first appeal (192 Ala. 576, 69 So. 4).

The action was tried on issues tendered by counts 1 and 5. Each count sufficiently averred that at the time of plaintiff's alleged injury he was acting within the line and scope of his employment with defendant. Ala. Fuel & Iron Co. v. Ward, 194 Ala. 242, 69 So. 621; St. L. & S.F.R. Co. v. Sutton, 169 Ala. 389, 401, 55 So. 989, Ann.Cas.1912B, 366.

Count 1 was drawn to state a cause of action under the first subdivision of the Employers' Liability Act (Code, § 3910), and attributes [76 So. 77] plaintiff's injuries proximately to a defect in the ways, works, machinery, or plant connected with, or used in the business of the defendant, or, more specifically stated, to the fact that "the roof of the mine in which plaintiff was working was defective." The count was not subject to the challenge of the demurrer. Clinton Mining Co. v. Bradford, supra, 192 Ala. 589, 69 So. 4; Sloss-Sheffield Co. v. Terry, 191 Ala. 476, 67 So. 678; Little Cahaba v. Gilbert, 178 Ala. 515, 59 So. 445; Tutwiler, etc., Co. v. Farrington, 144 Ala. 157, 39 So. 898.

Count 5 charged the defendant with a wanton wrong, and demurrers thereto were overruled. As shown by the judgment entry of March 6, 1915, the defendant reassigned its demurrers to the complaint as amended, and to each count thereof, and also filed "additional demurrers by separate paper." We have not found the demurrers last filed. We are of the opinion that the count was not subject to the demurrers assigned to it. Wilson v. Gulf States Steel Co., 194 Ala. 311, 69 So. 921; Dwight Mfg. Co. v. Holmes, 73 So. 933; T.C., I. & R.R. Co. v. Moore, 194 Ala. 134, 69 So. 540. The case of T.C., I. & R.R. Co. v. Smith, 171 Ala. 251, 260, 261, 55 So. 170, cited by appellant, has no application. It was pointed out in the opinion that the mine may have had more than one entry, and that, construed most strongly against the pleader, the complaint was indefinite. Sloss-Sheffield Co. v. Terry, supra; Sloss-Sheffield Co. v. Capps, 182 Ala. 651, 62 So. 66.

It is established in this state that a plea of contributory negligence is not sufficient if it merely states a conclusion of law; that it must aver the facts constituting the negligence, and the facts so averred must be such that the conclusion of negligence follows therefrom as a matter of law. Dwight Mfg. Co. v. Holmes, 73 So. 933, and authorities there collected; Pollock on Torts, 365.

Plea 3 was held insufficient as an answer to count 1. The effect of this plea, among other things, was to aver: (1) That at the time plaintiff sustained his injuries he was engaged in mining ore as an employé of the defendant; (2) that while so engaged a piece of rock became loose and was likely to fall; and (3) that this fact was known to plaintiff. Thus a knowledge of the defect, not of the danger, was charged to plaintiff. The plaintiff's duty was averred to have been, either to pull said rocks down, or to notify defendant's mine boss that said rock was loose, and not to go under it until a timber had been set thereunder by defendant's agent. The negligence sought to be charged to plaintiff by the plea is thus epitomized:

"But notwithstanding said duty plaintiff, when in the exercise of reasonable care he would have known the danger or risk he was thereby incurring, negligently went under said loose rock which fell, causing the injury of which he complained."

It is noted that the plea charges the duty to the plaintiff in the alternative, either to remove the rock himself or to notify defendant's mine boss or timber man of its condition. It is not averred that plaintiff did not discharge this duty of notifying defendant's agent of the defective condition of the rock or slate in the roof of the mine, nor is it averred, except by way of inference, that plaintiff did not pull the rock down, the averment being that "he negligently went under said loose rock which fell, causing the injury." Under this plea the plaintiff may have fully discharged his duty, on the discovery of the defect, by promptly notifying the defendant's agent of the same, affording the latter a reasonable time thereafter in which to remedy the defect before going in close proximity thereto; and yet the injury may be the proximate cause of the negligent failure of the defendant's agent, after such notice, to promptly remedy the defect or to remedy the same within a reasonable time thereafter.

The effect of the plea was to charge plaintiff with a knowledge of the defective condition, not a knowledge of the danger, nor that it was open and obvious. Wilson v. Gulf States Steel Co., supra; Dwight Mfg. Co. v. Holmes, supra; Porter v. T.C., I. & R.R. Co., 177 Ala. 406, 59 So. 255; Birmingham, etc., Co. v. Saxon, 179 Ala. 136, 59 So. 584. In Reynolds, as Adm'x, v. Woodward Iron Co., 74 So. 360, it was declared that the effect of the proviso or amendment to section 3910, found on page 602 of the Code, was to relieve the servant from the imputation of contributory negligence or assumption of risk predicated on the fact of his remaining in the service after knowledge of the defect or negligence, in an action by an employé who did not commit the negligent act causing the injury and upon whom the duty to remedy the defect did not rest; but it did not relieve such employé of the duty to give information of such defect or negligence when he knows of it and the master or superior employer has no notice or knowledge thereof. Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Standard Port. Cement Co. v. Thompson, 191 Ala. 444, 67 So. 608; Clinton...