Corona Coal & Iron Co. v. Amerson

• Decision Date: 05 April 1917
• Docket Number: 6 Div. 552
• Parties: CORONA COAL & IRON CO. v. AMERSON.
• Court: Alabama Supreme Court

75 So. 289

201 Ala. 3

CORONA COAL & IRON CO. v. AMERSON.

6 Div. 552

Supreme Court of Alabama

April 5, 1917

Rehearing Denied May 17, 1917

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by M.M. Amerson, as administrator, against the Corona Coal &amp Iron Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act of April 18, 1911, p. 449. Affirmed.

See also, 194 Ala. 175, 69 So. 601.

A.F Fite, of Jasper, Borden Burr, of Birmingham, and Wm. B Birch, of Macon, Ga., for appellant.

Ray & Cooner, of Jasper, for appellee.

MAYFIELD J.

This is the second appeal in this case, and several of the questions now presented for decision were decided on the former appeal.

While the evidence on this appeal is not identical with that on the former, it is practically the same. The evidence going to show that Freeman was an independent contractor, and that defendant was not operating the mine; that intestate was not in the employ of defendant but of Freeman; that the superintendent (Norris), to whom negligence was ascribed, was the servant or agent of Freeman and not of the defendant--is somewhat stronger on this appeal than on the former; but there is yet evidence sufficient to carry the case to the jury as to each of these allegations in the complaint. Moreover, the trial court heard and saw the witnesses testify, and in this respect had a better opportunity of gauging the sufficiency of the evidence to carry the case to the jury than we have. We, therefore, adhere to the former ruling that these questions were each properly submitted to the jury; and we are not willing to say that the trial court should have set aside the verdict because the great weight of the evidence on this issue was against it. Some of the charges requested by the defendant would, in effect, have taken these questions from the jury, and such were therefore properly refused.

There was also evidence sufficient to carry the case to the jury on each of the counts which went to the jury, and there was no error in refusing any of the charges which would have taken the case, as to any of such counts, from the jury. While the evidence was in great conflict as to nearly every material issue on which the trial was had, and we would not have disturbed a verdict for the defendant under any one of the counts, yet they were jury questions, one and all, and it would therefore have been error to take the case from the jury as to any one of the counts. That is, there was some evidence to show that deceased was an employé of the defendant; that Norris, the superintendent, was also an employé of the company; that the place at which plaintiff was put to work was unsafe by reason of the failure to prop the roof, which fell on and killed plaintiff's intestate; that Norris was guilty of negligence in the failure to properly inspect the roof, and in the failure to prop it.

Of course there was much evidence tending to show that intestate's own conduct was the cause of his death, in that it was his own duty to prop the roof which fell upon him, and that he failed so to do, thus assuming the risk, and contributing to his own...