Connors-Weyman Steel Co. v. Kilgore

• Decision Date: 30 June 1914
• Docket Number: 597
• Parties: CONNORS-WEYMAN STEEL CO. v. KILGORE et al.
• Court: Alabama Supreme Court

66 So. 609

189 Ala. 643

CONNORS-WEYMAN STEEL CO. v. KILGORE et al.

No. 597

Supreme Court of Alabama

June 30, 1914

Rehearing Denied Nov. 7, 1914

Appeal from Circuit Court, Shelby County; Hugh D. Merrill, Judge.

Action by Peggie Kilgore and another, as administratrices of R.I Kilgore, deceased, against the Connors-Weyman Steel Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Cabaniss & Bowie, of Birmingham, and Brown & Leeper, of Columbiana for appellant.

W.A Denson, of Birmingham, for appellees.

SOMERVILLE J.

The plaintiffs' intestate was killed while working in a coal mine by being struck by two empty tram cars, which escaped outside, and, uncontrolled, ran down the slope into the mine.

The case went to the jury on count A of the complaint. This count seeks to fasten upon the defendant a common-law liability for the death of plaintiffs' intestate, resulting from the alleged negligence of defendant in failing to provide a derailing switch near the mouth of defendant's mine. The alleged duty of defendant in this behalf is founded upon the following allegations of fact: (1) Defendant owned the coal mine; (2) it had contracted with one Adrien Sicard to mine the coal therein for its own benefit; (3) the intestate was an employé of Sicard, and as such, with the consent and at the invitation of defendant, was in said mine when killed; and (4) he was then engaged in mining coal for defendant's benefit, and was at a place where his duties as such miner required him to be.

Construing the complaint more strongly against the pleader, it must be taken as showing that Sicard was an independent contractor. The relations and obligations existing between such a contractor and his contractee, and between his employers and his contractee, have been often discussed and stated. Harris v. McNamara, 97 Ala. 181, 12 So. 103; Lookout Mt. Iron Co. v. Lea, 144 Ala. 169, 39 So. 1017; Tenn., etc., Co. v. Burgess, 158 Ala. 519, 47 So. 1029; Rep. I. & S. Co. v. Fuller, 6 Ala.App. 448, 60 So. 475; Porter v. Tenn., etc., Co., 177 Ala. 406, 59 So. 255; note, 76 Am.St.Rep. 382-428. It may be conceded that a mine owner, who, for some benefit to himself, procures the working of his mine, even by an independent contractor, and therefor impliedly invites such contractor and his employés to enter and use such mining premises, is liable to them for personal injuries resulting from any condition of the premises which is inherently dangerous, if the owner had knowledge or notice of such condition and the contractor or his employés had not. Samuelson v. C.I.

Mining Co., 49 Mich. 164, 13 N.W. 499, 43 Am.Rep. 456; Douglass v. Marsh, 141 Mich. 209, 104 N.W. 624; So. Oil Co. v. Church, 32 Tex.Civ.App. 325, 74 S.W. 797, 75 S.W. 817; Stevens v. United Gas Co., 73 N.H. 159, 60 A. 848, 70 L.R.A. 119. See, also, Sloss I. & S. Co. v. Tilson, 141 Ala. 152, 37 So. 427.

But prima facie out of these conditions and this relationship no duty is devolved upon the mine owner to furnish any part of the equipment necessary or suitable for the operation of the mine; and more especially is there no duty to select and install such safety appliances for track, trams, or machinery as would render their negligent operation by the contractor or his employés less likely to result in injuries to them. In order to fasten such a duty upon the mine owner (the contractee) it must be made to appear, either that he was bound to do so by agreement with the contractor, or else that he had in fact assumed to do so with the knowledge of the contractor or his employés, and that they had relied upon his doing so. Tested by these rules, the allegations of the complaint are manifestly not sufficient to show that defendant owed to the intestate the duty of providing "a derailing switch near the mouth of the mine," and the demurrer to the count in question should have been sustained.

The matter set up in defendant's special plea to count A was admissible in defense under the general issue, and error cannot be predicated upon its elimination by demurrer. In support of their theory that it was defendant's duty to provide a derailing switch for runaway tram cars at the mouth of the mine, plaintiffs offered in evidence the written contract between defendant and Sicard, and also elicited from defendant's witness (and president) certain facts relative to defendant's participation in the mining of the coal, and its responsibility for the condition and equipment of the tramway running from the tipple down the slope into the mine.

The most important terms of the contract bearing upon this issue are:

(1) The company shall furnish the railroad side tracks and tipple, tramway, hoisting engine, boilers, pump, ties, light rails for tramway, and 24 tram or coal cars, the same to be installed and ready for use; also to furnish light rails 12 pounds and 20 pounds to the yard, which go into the mine, and which are to be installed therein by the contractor at his expense.

(2) The contractor shall take the mine as it stands, furnish all labor, and stand all expense in suitably repairing the mouth of the mine. He shall also bear all expense in cleaning out the mine, laying the track, timbering the mine, and furnishing and doing everything else which may be necessary to mine the coal properly and with safety both to the lives of the men as well as to preserve the mine.

(3) The contractor assumes herewith all risk from accidents endangering the lives of his men, and from any and all causes whatsoever, both in the mine or about it, along the tramway, or in any way pertaining to the conduct or operation of the mine, either in part or as a whole, and to hold the company harmless from any liability or damage whatsoever of any kind or character to the men or property.

Other provisions required Sicard to pay all labor in and out of the mine, to screen and classify the coal and load the three grades on board the cars, for which he should receive $1 a ton to the extent of 300 tons per day, and to mine the coal in the best manner so as not to be harmful to the mine, and in accordance with the mine laws of Alabama, and to the satisfaction and approval of the company and its engineer.

We do not think that impartial minds can differ as to the meaning and effect of this contract. Unquestionably it makes of Sicard an independent contractor; and, while it requires the mine owner to furnish certain machinery and certain appurtenances in the way of side tracks, tipple, and tramway with ties and rails therefor, it is expressly stipulated that the contractor shall take the mine as it stands, bear all expense in preparing the...