Little Cahaba Coal Co. v. Arnold

• Decision Date: 10 November 1921
• Docket Number: 2 Div. 717.
• Parties: LITTLE CAHABA COAL CO. v. ARNOLD.
• Court: Alabama Supreme Court

91 So. 586

206 Ala. 598

LITTLE CAHABA COAL CO. v. ARNOLD.

2 Div. 717.

Supreme Court of Alabama

November 10, 1921

Appeal from Circuit Court, Bibb County; F. Lloyd Tate, Judge.

Action by Emma Arnold against the Little Cahaba Coal Company, for damages for the death of her husband. Judgment for the plaintiff, and the defendant appeals. Reversed and remanded.

American mortality tables are not conclusive proof of the expectancy of human life in particular cases.

Plaintiff's husband, 23 years of age, was a coal miner of several years' experience, and while at work in defendant's mine, where he was employed in driving a dip heading was killed by a fall of rock from the roof of the mine.

The complaint as originally drawn up contained four counts. Demurrers of the defendant were sustained to count 1, and plaintiff amended the complaint by withdrawing counts 2 and 4, and increasing the amount sued for from $3,000 to $10,000. This left in the case for submission to the jury only count 3. Count 3 contained the usual allegations with reference to employment, and further alleged that plaintiff's intestate was killed by a rock from the roof of the mine, and that his death was proximately caused by reason of a defect in the condition of the ways, works, machinery, or plant of the defendant, which said defect arose from, or had not been discovered or remedied owing to, the negligence of the defendant or of some person intrusted by it with the duty of seeing that the ways, works, machinery or plant were in proper condition, which defect consisted in this: That the roof of the mine at the place from which the rock fell and struck plaintiff's intestate was defective.

The defendant filed nine pleas, the first being the general issue. Plea 2 averred that plaintiff's intestate was himself the servant intrusted by defendant with the duty of seeing that the roof of the mine was in proper condition. Plea 3 charged that the intestate negligently failed to examine the roof before going to work thereunder. Plea 4 alleged that plaintiff's intestate was guilty of contributory negligence, in that, with knowledge of the defective roof, and with knowledge that the same would likely fall and injure him, he negligently worked thereunder. Plea 5 charged contributory negligence by alleging that the intestate negligently failed to examine the roof. Plea 6 charged contributory negligence, in that the plaintiff's intestate was under the duty to examine the roof in a prudent and careful manner to see if same was safe before going to work thereunder, and that he negligently failed to examine the roof in such manner. Plea 7 alleged that, while the intestate was engaged in removing coal from under the roof he removed some coal from under the rock, and rendered the same dangerous and liable to fall unless it was propped up or taken down, and that he negligently failed to prop or support the rock or take it down before working thereunder, or he negligently worked thereunder without propping or supporting said rock or taking the same down. Plea 8 charged contributory negligence, in that the plaintiff's intestate failed to provide himself with props with which to support the roof, or negligently failed to take down the rock which was loose, or negligently attempted to dig coal out from under the rock without first providing himself with props or taking the rock down. Plea 9 alleged that plaintiff's intestate, with knowledge that the roof where he went to work was defective, and that a rock in the same was dangerous and loose, and likely to fall and injure any person walking thereunder, voluntarily and negligently went to work thereunder.

Some of these pleas were ruled out upon demurrers of the plaintiff but, after the sustaining of some of plaintiff's demurrers and the overruling of others, plaintiff amended the complaint as already indicated by withdrawing two of the counts and increasing the amount claimed. Thereupon the judgment entry recites the defendant refiled its demurrers to the amended complaint, and the court overruled these demurrers, the defendant refiled its pleas Nos. 1 to 9 inclusive, and issue was joined by the plaintiff upon these pleas. The effect of the amendment of the complaint and the refiling of the pleas and the joining of issue thereon was the submission to the jury of only count 3 and each of defendant's pleas as an answer to this count.

It appears from the testimony of the plaintiff's witness Frank that early on Monday morning, the day of the accident intestate, Arnold, told him that a fall had occurred, which fall was at a point 100 feet beyond Arnold's working place, in the dip, and had occurred after the close of the work on Saturday previous, and told him to take a car on to the fall. After making a shot where he was working, Arnold went down to the fall, which was a fall of a side rib supporting the roof, and was about a car of coal and rock, and examined and sounded the roof with a shovel handle, and remarked that it sounded tolerably well. Arnold then went to work under the rock, loading the fallen material, and in about 10 minutes the rock fell on him from the roof. The witness further testified that the condition of the rib or the wall of the entry just prior to the time it fell down was all cracking open and crumbling in, holes all behind it; that the cracks were pretty big, and that, crumbling in, it was liable to fall at any time; that condition would have the tendency to let the roof fall in any time, and any one could see the condition walking along, and that that was the condition of the rib where Arnold went to work before it fell on him; that Arnold went to work in that place, and when he went to work the rib had already fallen; that the fall the night before took the support away from the rock overhead that Arnold worked under; that the rib of the entry fell the night before, and when it fell it left this rock hanging without any support, and liable to fall any minute; that there was nothing to hold the rock that he (Frank) saw; that you could see the rock and could see that there was an unsupported rock in the top, and that this condition was open to a man passing along; that that rock was likely to fall any minute; that he (Frank) knew without any practical experience as a miner that it was likely to fall any minute; that this was his knowledge, and he could tell this from being driver; that Mr. Arnold had used a shovel handle to sound this rock, and said that it sounded tolerably safe.

The witness further testified that he heard the mine foreman, Mr Fullman, tell Arnold to run the heading when there was no timber man to do it. By running the heading, Frank testified that the man running the heading took the place of the timber man-that is, that he was doing the...