Lookout Mountain Iron Co. v. Lea

• Decision Date: 09 January 1906
• Citation: 39 So. 1017,144 Ala. 169
• Parties: LOOKOUT MOUNTAIN IRON CO. v. LEA.
• Court: Alabama Supreme Court

39 So. 1017

144 Ala. 169

LOOKOUT MOUNTAIN IRON CO. v. LEA.

Supreme Court of Alabama

January 9, 1906

Appeal from Circuit Court, De Kalb County; J. A. Bilbro, Judge.

"To be officially reported."

Action by G. W. Lea, as administrator, etc., against the Lookout Mountain Iron Company. From a judgment for plaintiff defendant appeals. Affirmed.

This is an action of damages growing out of the killing of appellee's intestate by certain tram cars used and operated by the appellant corporation in the conduct of its business of mining coal. Appellee's intestate was in the employment of one Summers, who had a contract with appellant to get out coal for it from its mines, and while so engaged in mining coal in a room or apartment of said mine appellant's cars ran down the track into the room where appellee's intestate was working, and crushed and otherwise bruised him, causing his death. The complaint on which the case was tried and judgment rendered contained numerous counts; but the two counts on which the trial was had, and to which the judgment is referable are counts 1 and 2, and are as follows, after being amended: "(1) Plaintiff claims of the defendant $25,000 as damages, for that heretofore, to wit, on the 4th day of April, 1904, the defendant was the owner of a coal mine in De Kalb county Alabama, operating the same, running tram or coal cars in the same, for the purpose of hauling and removing coal therefrom and while so engaged, through its agents and servants allowed its tram or coal cars to run down its track entering said mine, into a room or entry where plaintiff's intestate was rightfully at work assisting one Sam Summers who was employed by the defendant to mine coal in its said mine as a contractor, the deceased being hired by said Summers to assist him in and about the work of mining coal in said mine; and said cars were thus allowed to run negligently, carelessly, and recklessly against plaintiff's intestate, striking him, crushing and breaking his legs, and otherwise injuring him, from the proximate result of which he died on, to wit, the ______ day of ______, 1904. And plaintiff alleges that said injury was the result of the negligence of defendant's agents and servants in charge of and operating and running said tram cars. (2) Plaintiff claims of the defendant the further sum of $25,000, for that heretofore, to wit, on the 4th day of April, 1904, defendant was the owner of a coal mine in De Kalb county, Ala., operating said mine, using tram cars that ran on tracks entering said mine for the purpose of hauling coal from the same, and while so engaged, the defendant ran its tram cars into said mine and along its said track into a room or entry where plaintiff's intestate was rightfully at work assisting one Sam Summers, who was employed by the defendant to mine coal in its said mine as a contractor, the deceased being hired by said Summers to assist him in and about the work of mining coal in said mine, and negligently allowed said cars to run against his said intestate, bruising and injuring him, from the results of which injuries he died on the ______ day of ______, 1904."

The first ground of demurrer urged to these counts is as follows: "So far as appears from the averments of said count, plaintiff's intestate was a mere licensee in the mines of defendant, and it does not appear from the averments of said count that the injuries done to plaintiff's intestate were wantonly or willfully inflicted." The second ground is sufficiently set forth in the opinion.

The defendant requested the following written charges, which were refused: "(1) I charge the jury that if from the evidence you find that the plaintiff's intestate was injured in defendant's mines, while engaged at work therein as an employé of the independent contractor, Sam Summers, through the negligence of the defendant's mine driver, Frank Johnson, in leaving the trip of loaded cars on the track where the collision occurred, then such negligence on the part of Frank Johnson was the negligence of a fellow servant, for which the plaintiff cannot recover of the defendant unless you find that the defendant injured the plaintiff's intestate either wantonly, recklessly, or intentionally. (2) Under the evidence in this case, defendant did not owe the deceased any duty, but not to injure him knowingly or intentionally." (3) General affirmative charge. "(4) I charge the jury that under the evidence in this case the relation which the plaintiff's intestate sustained to the defendant was that of a licensee, and the measure of the defendant's duty to him as such licensee was not to injure him wantonly, recklessly, or intentionally." (5) General affirmative charge as to count 2. (6) General affirmative charge as to count 1. (7) General affirmative charge. "(8) If the jury believe from the evidence that the defendant, by acquiescence in the employment of the deceased by the independent contractor, Sam Summers, invited the deceased to work in its mines, then the deceased became a fellow servant of those engaged in the common employment and assumed the risk of their negligence. (9) I charge the jury that if from the evidence you find that the defendant through its mine superintendent or mine foreman had not in fact given permission to the plaintiff's intestate to work in its mines as an employé of the independent contractor, Sam Summers, but if you further find that the defendant's mine superintendent or mine foreman knew that he was at work there and impliedly acquiesced in his presence in the defendant's mine, such acquiescence would only operate as a mere license to him, and imposed on him the risk incident to the mining of the coal and rock and the operations therewith in the defendant's mine, except such as might result from the wanton or intentional wrong on the part of the defendant or a failure...