Mascot Coal Co. v. Garrett

• Decision Date: 18 June 1908
• Citation: 47 So. 149,156 Ala. 290
• Parties: MASCOT COAL CO. v. GARRETT.
• Court: Alabama Supreme Court

47 So. 149

156 Ala. 290

MASCOT COAL CO. v. GARRETT.

Supreme Court of Alabama

June 18, 1908

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

Action by Ann J. Garrett, administratrix, against the Mascot Coal Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The first count was in the following language: "Plaintiff as administratrix of Stephen Garrett, deceased, claims of defendant the sum of $25,000, for that on or about the 15th day of February, 1906, the defendant was operating and managing a coal mine in Winston county, Ala., near Delmar and on said date plaintiff's intestate, said Stephen Garrett, was in the employment of defendant in the capacity of a laborer or coal digger at work in said coal mine on said date under the direction of defendant, or its servants or agents in control of the management and operation of said mine on that date, and while so at work in the place assigned him by defendant in said coal mine he was killed by the falling of the roof overhead, or a part of the roof, where he was at work; and plaintiff alleges that defendant breached its duty which it owed to plaintiff's intestate to furnish him with a suitable and safe place to work, and to furnish him with safe and suitable machinery and appliances in and around which plaintiff's intestate had to work and plaintiff alleges that by reason of such failure on part of defendant, which it owed plaintiff's intestate he was killed by the falling of the roof overhead, or a part thereof, which said roof, or a part thereof, fell upon plaintiff's intestate and killed him; and plaintiff alleges that her intestate's death was caused by reason of said roof not being propped, or not being in a safe condition, at the place where he was so at work at the time he was killed as aforesaid." The second count, after averring the conditions as in the first count, avers that her intestate's injury and death were caused by reason of defects in the condition of the ways, works, machinery, or plant connected with or used in the said business of defendant, in that the roof overhead the place where plaintiff's intestate was at work at the time he was killed was unsafe and not sufficiently propped to prevent the same from falling, and was so negligently permitted to be and remain in an unsafe condition that it fell upon plaintiff's intestate and killed him; that said defect arose from, or had not been discovered or remedied owing to the negligence of defendant, or of some person in the service of defendant and intrusted by it with the duty of seeing that said works, ways, machinery, and plant, etc., were in proper condition. For reasons stated in the opinion, it is unnecessary to set out the third count. The fourth count was as follows: "Plaintiff, as administratrix of the estate of Stephen J. Garrett, deceased, claims of the defendant the sum of $25,000 damages, for that, on or about the 15th day of February, 1906, the defendant was managing and operating a coal mine near Delmar, in Winston county, Ala., and on said date defendant had in its service or employment one John Pearce, a bank boss, who was intrusted by defendant with the superintendence of seeing that the roof overhead in said coal mine was in a safe and proper condition at the place where plaintiff's intestate, Stephen J. Garrett, was on said date at work for defendant in said coal mines, under its employment and under its direction in the capacity of a laborer or coal digger, and plaintiff avers that, while in the exercise of the superintendence aforesaid, the said John Pearce, did carelessly or negligently place plaintiff's intestate, Stephen J. Garrett, in a place in said coal mine to work where the roof overhead was in an unsafe and dangerous condition, which said roof overhead, or a part thereof, or a rock from overhead, fell upon plaintiff's intestate while he was so at work for defendant in the discharge of his duties, and mashed and killed him." The fifth count is the same as the fourth, except the averment of negligence of John Pearce, the bank boss, which is as follows: "Plaintiff avers that, while in the exercise of said superintendence, the said Pearce carelessly or negligently permitted the roof overhead the place where plaintiff's intestate was at work on said date to become unsafe and in a dangerous condition, and while plaintiff's intestate, Stephen J. Garrett, was at work in the discharge of his duties for the defendant, at the place assigned him to work, a rock from the roof overhead in said coal mine fell upon him, causing his immediate death, all of which was the proximate result of the negligence of the said bank boss, Pearce, as aforesaid."

The following demurrers were filed to the complaint: To the first count: Because it does not state a sufficient cause of action. The said count does not affirmatively show any duties that defendant owed plaintiff's intestate. Said count does not show how, in what way or manner, ...