Little Cahaba Coal Co. v. Gilbert

• Decision Date: 29 June 1912
• Citation: 59 So. 445,178 Ala. 515
• Parties: LITTLE CAHABA COAL CO. v. GILBERT.
• Court: Alabama Supreme Court

59 So. 445

178 Ala. 515

LITTLE CAHABA COAL CO. v. GILBERT.

Supreme Court of Alabama

June 29, 1912

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

Action by George F. Gilbert against the Little Cahaba Coal Company for damages for personal injuries sustained while in their employment. Judgment for plaintiff, and defendant appealed. Affirmed.

The facts and pleadings sufficiently appear from the opinion, as do the charges given for the plaintiff. The following charges were refused the defendant: C. "If the jury believe from the evidence that the plaintiff had escaped from danger, and then went back voluntarily near where the rock had fallen without a light and without taking any precautions and making any inspection to see whether or not he was going into danger, then the law says that the plaintiff has assumed the risk he thereby incurred, and, if he is consequently injured thereby, the plaintiff cannot recover under any count of the complaint." E. "The court charges the jury that the plaintiff is presumed to know of the result of natural laws and dangers, and that unsupported rocks are liable to fall."

Weatherly & Stokely, of Birmingham, for appellant.

Bowman Harsh & Beddow, of Birmingham, for appellee.

DOWDELL C.J.

This is an action under the Employer's Liability Act (Code 1907 §§ 3910-3913) for personal injuries received by the plaintiff from the falling upon him of rock from the roof of a mine operated by the defendant. The trial was had upon the first and third counts of the complaint, the second and fourth having been charged out by the court; and, demurrers to said first and third counts having been overruled, the defendant pleaded in short by consent the general issue, with leave to give in evidence any special matter of defense that might be specially pleaded, and with leave to the plaintiff to put in evidence any special matter that might be made the subject of special replication. There were verdict and judgment for the plaintiff, and the defendant prosecutes this appeal.

The first assignment of error is based on the court's overruling the demurrer to count one as amended. This count is framed under the Employer's Liability Act (section 3910, subd. 1, of the Code of 1907). It avers that defendant was operating a certain coal mine, and that while plaintiff was in the service or employment of the defendant, and while he was in said mine engaged in or about the business of the defendant in said service or employment, a part of the roof or top of said mine fell upon or against him, proximately causing the injuries for which damages are claimed. Thus far the averments of this count are adopted by the third count. Then the first count proceeds: "Plaintiff avers that said part of said roof or top fell upon or against him, as aforesaid, and he suffered said injuries and damage, by reason and as a proximate consequence of a defect in the condition of the ways, works, machinery, or plant used in or connected with the said business of defendant, which defect arose from or had not been discovered or remedied owing to the negligence of the defendant, or of some person in the service or employment of defendant intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition, viz., said part of said roof or top which fell upon or against him was defective."

Appellant contends that this count is demurrable in that it seeks to fix negligence, per se, upon the defendant, from the mere existence of a defect in the roof, citing Merriweather v. Sayre, 161 Ala. 441, 49 So. 916. This contention is based upon an incorrect premise. It overlooks the averment that the defect arose from or had not been discovered or remedied owing to the negligence of the defendant, or of some person in its employ and intrusted by it with the duty of seeing that the ways, works, etc., were in a proper condition. The count in the Merriweather Case, supra, does not follow the statutory language, and is evidently based upon the common-law duty of the master to exercise due care to have the premises reasonably safe for its servants to work in, and that duty is met when reasonable care and skill are exercised that such reasonably safe place may be afforded. Hence it was held in that sort of case that the averment of a mere failure to furnish a reasonably safe place in which to work was insufficient. Here the averment is that the defect arose from or had not been discovered or remedied by reason of negligence, for which, under the language of the statute, the master is responsible; and therefore it cannot be said that this count would charge the master with liability solely for the existence of a defect, without more. The demurrer on this ground is not well taken. Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 So. 445; A. G. S. R. R. Co. v. Davis, 119 Ala. 572, 24 So. 862.

It is further contended that this count does not show that the plaintiff was engaged in the duties of his employment at the time he was injured, yet the count avers that at the time of the injury plaintiff was in the employment of defendant and was in the mine engaged in defendant's business in such employment.

Another ground of demurrer to the first count is that the defect alleged is not sufficiently described. It will be noted that the first count avers that the injury was caused by a part of the roof or top of the mine falling on the plaintiff, that this was the proximate consequence of the defect in the ways, works, etc., arising from negligence, and that this defect was in that part of the roof which fell upon plaintiff, or, rather, that that part of such roof was defective. True it is, as has often been held by this court, that "a complaint declaring on negligence under the Employer's Liability Act should in respect of certainty conform to rules which under our system apply to pleadings generally. Those rules permit the averment of conclusions, but conclusions when employed must ordinarily be accompanied with averments of fact whereon issues can be understood, joined, and tried." L. & N. R. R. Co. v. Jones, 130 Ala. 470, 30 So. 590. In that case the following averment was held sufficient: "Caused or allowed the attempt to get said car upon said rails without proper appliances." In the case of Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 So. 445, the defect in the ways, works, etc., was held to have been sufficiently pointed out by the words: "The said railway from which the said engine was derailed as aforesaid at or near the point of derailment was defective."

It is also contended that the above count is defective in that it fails to aver that it was defendant's duty to prop or secure the roof or to have it

safe, and a breach of that duty. In reply to this, it is only necessary to call attention to the fact that the Employer's Liability Act provides that: "When a personal injury is received by a servant or employé in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employé, as if he were a stranger, and not engaged in such service or employment, in the cases following: When the injury is caused by any defect in the condition of the ways, works, machinery, or plant, connected with, or used in the business of the master or employer, * * * which defect arose from or had not been discovered or remedied owing to the negligence of the master," etc. The duty of the master to protect the servant while engaged in his employment from injury by reason of defects in the ways, works, etc., arising from negligence with which the master is chargeable, is a duty growing out of the relation of master and employé under this act, and, when the averments of a count bring it within the statute, it is not necessary to add to the averments required by the statute that it was the defendant's duty to prevent the defect which is averred to have arisen from negligence, of the sort for which the master is made liable by the statute. As was said in the case of Republic Iron & Steel Co. v. Williams, 168 Ala. 618, 53 So. 78: "Every complaint for negligence must show a relation between the parties out of which arises a duty owing from the defendant to the plaintiff. Extremest advocates of the modern practice of general and informal allegation in complaints have not yet denied the necessity of averring such a relation. That much shown, we have a long line of cases, running back to Leach v. Bush, 57 Ala. 145, which hold that an averment that the defendant negligently failed to do and perform the act imposed by duty, sufficiently states a cause of complaint. * * * Complaints in tort for negligence are much dependent upon the use of the word 'negligently.' Without regard to the policy of brevity, it would be difficult in many cases to draw a complaint without the use of this word, and where, from all the facts that could be stated, it would remain for the jury to draw the inference of negligence vel non, the pleader must of necessity draw the inference in stating his case. * * * We do not for a moment suppose the word to be essential in every case, nor that it may not be ineffectively or inaptly used, but plainly it covers a multitude of omissions and is exceedingly useful." The case of Horan v. Gray & Dudley, 159 Ala. 159, 48 So. 1029, which was based upon a failure to warn of danger, is not in conflict with our ruling here. Under the principles laid down in our former decisions, the first count was not subject to the demurrer interposed.

The third count adopts the first part of count 1 and then charges: "Plaintiff avers that said part of said roof or top fell upon or against him, as aforesaid, and he suffered said injuries and damage by reason and as a proximate...