Lockhart v. Sloss-Sheffield Steel & Iron Co.

• Decision Date: 10 February 1910
• Citation: 51 So. 627,165 Ala. 516
• Parties: LOCKHART v. SLOSS-SHEFFIELD STEEL & IRON CO.
• Court: Alabama Supreme Court

51 So. 627

165 Ala. 516

LOCKHART v. SLOSS-SHEFFIELD STEEL & IRON CO.

Supreme Court of Alabama

February 10, 1910

Appeal from Circuit Court, Walker County; James J. Ray, Judge.

Action by P. R. Lockhart against the Sloss-Sheffield Steel & Iron Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The following are the pleas mentioned in the opinion: (3) "For further answer, defendant says that plaintiff was guilty of negligence which contributed proximately to his injury, in this: That plaintiff did not examine his working place under the rock or place that fell on him before commencing work thereunder, and as a proximate result thereof was thereby hurt. It was the duty of plaintiff before commencing work to examine his working place, and his injury was the proximate result of his failure to perform this duty." (6) "Defendant says that plaintiff was guilty of negligence which contributed proximately to his injury, in this: That plaintiff knew of the defects or negligence complained of, and failed in a reasonable time to give information thereof to the defendant or some person superior to himself engaged in the service or employment of defendant." (7) "The defendant says that plaintiff was guilty of negligence which contributed proximately to his injury, in this: The rock or slate under which he was at work when he was hurt was insecure and liable to fall, and in a dangerous condition, and its dangerous condition was known to plaintiff, or by the exercise of ordinary care would have been known to him; but, notwithstanding the same, plaintiff negligently continued to work under said rock or slate, and thereby proximately caused his injury." (12) "Defendant says that the plaintiff assumed the risk of his injury, in this: That he negligently continued to work in an entry of the mine which he knew was not sufficiently propped and was liable to fall on him, and thereby came to his injury."

Demurrers were interposed to the third plea as follows: "The plea was a conclusion of the pleader, in that it does not state facts showing that plaintiff neglected his duty at the time of going to the place where he received his injury. It does not aver that, if plaintiff had examined his place where he was working, he would have discovered that the same was defective or dangerous." To the sixth plea: That it is a conclusion, in that it fails to state facts sufficient to constitute contributory negligence, and the plea fails to aver that plaintiff knew of the defect or danger mentioned therein prior to the time that he was injured. To the seventh plea: That it is a conclusion; and, further, that the fact that plaintiff by the exercise of ordinary care would have known that the rock or slate was insecure, and liable to fall, and in dangerous condition, would not constitute contributory negligence on plaintiff's part, even though he remained at work at said place; and, further, that said plea fails to show that the plaintiff appreciated the danger mentioned in said plea. To plea 12: That it fails to allege facts showing an assumption of risk, and because it does not show that the risk stated was incident to plaintiff's employment.

Ernest Lacy, for appellant.

Bankhead & Bankhead, for appellee.

McCLELLAN J.

Appellant (plaintiff) was injured by the falling upon him of a part of the roof of appellee's mine, in which appellant was then engaged. The errors assigned relate only to the action of the court in overruling demurrers to pleas 3, 6, 7, and 12.

Plea 3 would impute contributory negligence to plaintiff because of alleged violation, or rather the alleged failure to observe the requirements, of rule 3, Code 1907, § 1034. That rule reads: "Every workman employed in the mine shall examine the working place before commencing work, and after every...