Green v. Bessemer Coal, Iron & Land Co.

• Decision Date: 20 May 1909
• Citation: 50 So. 289,162 Ala. 609
• Parties: GREEN v. BESSEMER COAL, IRON & LAND CO.
• Court: Alabama Supreme Court

50 So. 289

162 Ala. 609

GREEN v. BESSEMER COAL, IRON & LAND CO.

Supreme Court of Alabama

May 20, 1909

Rehearing Denied June 30, 1909.

Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.

Action by Mrs. M. A. Green, administratrix of the estate of W. T Green, deceased, against the Bessemer Coal, Iron & Land Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The following counts of the complaint are referred to in the opinion:

(4) "The plaintiff, as administratrix of the estate of W. T Green, claims of the defendant, the Bessemer Coal, Iron &amp Land Company, a corporation, the sum of $15,000 as damages for that heretofore, to wit, on the 11th day of March, 1907, the defendant was operating a coal mine at or near Belle Ellen, in Bibb county, Ala., by the slope system, and that on said day plaintiff's intestate was in the service or employment of the defendant in or about the operation of said mine, and that on said day the defendant in the operation of said mine was using a hoisting engine, and with it was letting down tram or dump coal cars into, and pulling them out of, said mine on a tram track by using a cable from said hoisting engine and fastened to said cars, the cars being coupled together, and that the intestate on said day, while in said service or employment, got upon one of said tram or dump coal cars, and the said car was being lowered in the said mine by the means aforesaid with intestate upon it, and before said car had been lowered to the bottom of said mine, and while it was being lowered or let down the incline of said slope, the car upon which the intestate was riding and while the intestate was upon it, became detached or uncoupled from the car above it, and ran down said incline and killed the intestate as a proximate consequence thereof; and plaintiff avers that said cars became detached or uncoupled, and ran down said slope, and killed the intestate as aforesaid, by reason and as a proximate consequence of the negligence of a person in the service or employment of the defendant who had superintendence intrusted to him whilst in the exercise of such superintendence, viz., whose name is unknown to plaintiff, negligently caused or allowed said car to become detached or uncoupled as aforesaid, and thereby negligently caused the death as aforesaid of plaintiff's intestate."

(9) Same as 4, except that it is alleged that defendant was using the hoisting engine, drum, or machine and coal cars for lowering and hoisting persons into and out of said mine, and while in the discharge of the duties of said employment he was being lowered by defendant by the means aforesaid into said mine, etc., same as fourth count. The negligence alleged is as follows: "That defendant on said day was using said car or cars as cages for the purpose of lowering and hoisting persons into and out of said mine without any approved safety catches attached to the said car or cars then and there being used as aforesaid, which proximately contributed to the injury and death of intestate. (This is the amended count.)

Count 10 is not set out.

(11) Same as 4, except that it is alleged that he was injured while going to his work down a certain slope in said mine of defendant, as he had a right to do, on a trip of cars attached to each other. The negligence alleged in this count is under the first subdivision of the employer's liability act (Code 1907, § 3910).

Plea 4: "Defendant is not liable in this action because plaintiff's intestate had notice that it was dangerous to ride on said tram cars, and had been warned and informed thereof, yet, notwithstanding said warning and knowledge, he negligently got on said car on the morning of the injury complained of, and proximately contributed to the said injury; and defendant says that he assumed the risk as to injuries received on account of his negligence."

Plea 8: "Plaintiff's intestate was himself guilty of negligence which proximately contributed to his death, in this: With knowledge of a safe way to walk to his place of work, and with knowledge of the danger of riding on said tram car, he negligently conducted himself in going to his said work by riding on said car."

Plea 10: "Defendant's foreman warned plaintiff's intestate that it was dangerous to ride on said tram car, and instructed said intestate not to ride on said tram car."

Plea 11: "Plaintiff's intestate was an employé of defendant, and his duties were in the main way in the said mine, and a safe way was provided for said intestate to walk to his place of work; and defendant says that said intestate was guilty himself of negligence which proximately contributed to his said injuries in this: With knowledge of the safe way to walk to his place of work, and with knowledge that it was dangerous to ride on the tram cars into said mine, negligently undertook to go to his place of work by riding on said cars."

The replications numbered 1, 3, and 4 set up a custom of the employés in riding to their work and an acquiescence with knowledge by the master that the servants were in the habit and custom of riding to their work on the cars as plaintiff's intestate was doing when he was killed. It is deemed unnecessary to set out replication No. 3.

Logan, Vandegraaft & Fuller and Ellison & Collier, for appellant.

Joel F. Webb and Lavender & Thompson, for appellee.

SAYRE J.

Count 4 avers that plaintiff's intestate at the time of his injury and death was in the service or employment of the defendant in or about the operation of the defendant's mine. This is not the equivalent of an allegation that plaintiff's intestate was at the time engaged in or about the business of the defendant; that is to say, was at the time engaged in the performance of some duty imposed upon him by his employment. Non constat he was at the immediate time upon some errand or business of his own, although in a general way in the employment of the defendant. There was no error in sustaining the demurrer to this count. Count 9 attempts to state negligence on the part of the defendant in complying with section 1028 of the Code of 1907. It appears from the count that plaintiff's intestate was being lowered into the mine by means of an engine and drum attached, as we must suppose, by wire or cable, or in some such way, to the car upon which he was. The car was a coal car, but was used also for lowering and hoisting persons into and out of the mine. The car upon which intestate was became uncoupled...